7 things we’ve learned from the ‘Ambulances held hostage’ series

As if a two-year pandemic, staff retention struggles and recruiting headwinds were not enough to contend with, EMS agencies everywhere are grappling with long delays at receiving hospitals when the EMS crew attempts to hand-off the patient. Doug Wolfberg and Steve Wirth, longtime field providers, EMS attorneys and advocates for the profession, laid out the severity of the problem, a legal framework for EMS action and possible solutions in “Ambulances held hostage,” a three-part EMS1 article series.

Part 1, “Can the hospital make you stay,” addressed the hospital’s legal responsibility to patients and explained why EMS staying with the patient in the emergency department is purely voluntary. Part 2, “Should we stay or should we go?,” focused on EMS decision-making on whether to remain in the ED with the patient after arrival on hospital property. Finally, Part 3, “EMS strategies for reducing ambulance offload times,” focused on specific EMS strategies for reducing or eliminating prolonged ambulance patient offload times.

This is one of the most popular set of articles we’ve ever published to EMS1 and the response from field providers, field supervisors, managers, CEO/owners and medical directors has been off the charts. From new recruits, to seasoned providers, to industry insiders, there are many important lessons in the article series. Here are seven things we’ve learned from the series and questions we still have about the widespread phenomenon of ambulances being held hostage.

1. Words matter. The problem is “hospital bed delays”

As in most things, precision in language is critical to understanding the problem, communicating the scope of the problem to other stakeholders and solving the problem. For years, providers, managers, medical directors and emergency department staff have casually used terms like “EMS wall time” or “ambulance patient boarding” to describe the occasional high-demand peaks for crews having to wait a few minutes to hand-off care to a nurse or physician. Those terms inaccurately place the blame on EMS. Wolfberg and Wirth launched the series by accurately labeling the problem.

“The origins of the current crisis are multifaceted. High ED demand (much of it for non-emergency conditions), inadequate hospital staffing, poor hospital throughput and other root causes have all conspired to cause extended wait times as ambulance crews attempt to transfer their incoming patients to hospital beds. For this reason, while the crisis is known by many different names, the most appropriate descriptor is ‘hospital bed delays’.”

2. On hospital grounds, the hospital is legally responsible for the patient

The biggest revelation to me in the entire series is that under federal law, the patient, once on the grounds of the hospital, is the legal responsibility of the hospital. Wolfberg and Wirth write:

“Hospitals can ask EMS personnel to remain with a patient in the ED, but once a patient has come to the hospital’s property, the hospital bears the legal responsibility for the patient, and EMS personnel remaining with the patient is purely voluntary under the law.”

The hospital property doesn’t begin as the patient passes through the doors from the ambulance bay and into the emergency department. In fact, the hospital property includes, “the hospital’s main buildings, adjacent areas and areas within 250 yards of the main buildings. In other words, the legal definition of ‘hospital property’ is quite expansive.” They also write, “It is crystal clear, black letter Federal law that patients who come to the hospital by ambulance are the legal responsibility of the hospital when the patient arrives on hospital property.”

3. Yes, this means EMS can leave the patient at the hospital

Wolberg and Wirth explain that the hospital can ask EMS to stay with the patient, but the EMS crew can decline the hospital staff’s request to stay with the patient.

“Too many hospitals are taking advantage of EMS agencies based on a misunderstanding of the law regarding which entity – EMS or the hospital – has the primary legal duty to the patient once the patient reaches hospital property. So, once hospitals recognize that EMS remaining with the patient is voluntary and a courtesy extended to the hospital by the EMS agency, only then can fair and appropriate discussions take place.”

4. EMS attending to a hospital patient probably violates the federal anti-kickback statute

How many hours of staff time is your agency spending at the hospital with patients who are the legal responsibility of the hospital? Those hours, likely measured in the hundreds of hours per week, are hours the hospital is not paying its own staff to assess, monitor and treat patients. Those free hours are renumeration to the hospital, a financial benefit given to the hospital by the EMS agency. Wolfberg and Wirth write:

“Violation of the Anit-Kickback statute (AKS) is a felony and can also serve as a basis of liability under the Federal False Claims Act (FCA). The forced provision of services by EMS personnel to hospital patients who are the hospital’s legal responsibility has significant value to the hospital, and it is likely that both the AKS and FCA may be raised in lawsuits and whistleblower complaints in the not-too-distant future.”

5. Top decisionmakers must collaboratively solve this problem

Declining cases of COVID aren’t likely to alleviate the problem of hospital bed delays. The healthcare staffing crisis, including EMTs, paramedics and nurses, is likely to persist long after the pandemic, meaning hospital leaders can’t simply wait out the public health crisis for the problem to go away. Instead, top decision makers, from the hospital, to the EMS agency and other relevant policymakers need to meet to identify and implement solutions. Wolfberg and Wirth write:

“These meetings must start with accepting the notion that federal law clearly makes the hospital responsible for the patient once the ambulance reaches hospital property, and EMS remaining with the patient is voluntary. Once that fact is acknowledged and accepted, productive discussions can occur on a more level playing field.

These meetings also help encourage empathy and appreciation from both sides for the problems that each encounter. Successful collaboration involves seeing the problem from the perspective of the “other side” – and when that occurs, the likelihood of implementing positive changes increases.”

6. If you stay, know what’s best for EMS

The second article in the series concludes with a series of “if you stay recommendations.” Wolfberg and Wirth discuss asking for financial compensation, minding your scope of practice and letting the hospital know your limits. Regarding the request for payment for services, Wolfberg and Wirth write:

“It is fair and reasonable for ambulance services to ask for payment of appropriate compensation from hospitals which benefit from EMS provision of care for their patients. If the ED is inadequately staffed, and the hospital’s solution for meeting its legal responsibilities is to rely upon EMS staff to stay with and continue care for hospital patients, EMS can certainly ask the hospital to pay fair market value for the services that EMS provides and that clearly benefit the hospital.”

7. EMS does not have a duty to accept non-emergency transports

The third article in the “Ambulances held hostage” series focuses on strategies for EMS to reduce the time EMS crews spend offloading patients at the emergency department. The authors discuss buying more cots and hiring a handoff coordinator. They also address the worsening problem of discharged patients in need of non-emergency transportation (NET) to their home or to a skilled nursing facility. Wolfberg and Wirth write:

“Unlike 911 calls, EMS agencies do not ordinarily have a legal duty to respond to facility NET requests, and they should ensure their financial risk is covered prior to agreeing to render these services. There have been several federal fraud cases against hospitals which have misrepresented patients’ conditions on ambulance medical necessity forms to improperly justify an ambulance transport to improve their bed turnover or patient “throughput” and thus make space for more patients. So, ambulance services need to hold facilities accountable for providing accurate patient information when they order ambulance services for NETs.”

What are your questions for Wolfberg and Wirth?

Like me, you’ve probably read the articles and some of the hundreds of comments the articles have received on LinkedIn and Facebook, and you still have questions. On February 18, Wolfberg and Wirth will continue the discussion of ambulances being held hostage by offload delays, confusion about the hospital’s legal responsibilities and disingenuous claims that are made about when and where the hospital accepts responsibility for the patient. Join this exclusive live online event or register to receive the video recording to ask your questions or hear the answers to questions I still have for Wolfberg and Wirth, including:

1. Tell me more about the Federal Anti-Kickback statute. What are some examples of “renumeration” and how is an AKS violation claim typically documented and litigated?
2. Some EMS systems are caring for patients inside the emergency department, even though they don’t have a legal responsibility to do so. Some agencies are going as far as hiring staff to tend to EMS patients until hospital staff take over. Is this setting a precedent that could become the de facto standard, especially if the current law isn’t being enforced?
3. What is the licensure risk to EMS providers who leave the patient at the hospital? They are following the letter of the law, but might not be following a typical or standard practice in their state or region.
4. Patients who reach the hospital but don’t receive timely assessment from hospital staff are impacted by hospital bed delays. Those same delays, keeping EMS crews at the hospital, also force 911 callers to wait longer for an EMS crew to arrive. What do we know about the impact of hospital bed delays on patient outcomes?
5. Are you aware of any active Federal False Claims Act lawsuits? What do the lawsuits allege? Who brings those lawsuits forward? EMS? Other litigants?

What other questions do you have for Wolfberg and Wirth? Add them in the comments below or email them to khatt@lexipol.com.