Community Paramedicine: A Legal Analysis

Oct 3, 2014 by

The Assistant Secretary of Preparedness and Response (ASPR) funded a legal analysis of Community Paramedicine (CP) / Mobile Integrated Healthcare (MIH) for the Association of State and Territorial Health Officials in order to address core issues that might be barriers for health professionals and organizations in MIH initiatives. This report was developed by faculty at the Arizona State University Sandra Day O’Connor College of Law and is entitled, “Expanding the Roles of Emergency Medical Services Providers: A Legal Analysis”. It reviews case-law, statutes, and MIH programs in much of the United States with a focus on jurisdictions of the advisory group: Arizona, California, Delaware, Florida, Georgia, Idaho, Illinois, Massachusetts, Mississippi, Montana, North Dakota, Oregon and Utah. Furthermore, it examines 3 essential characteristics of Emergency Medical Services (EMS): Triggers for activating EMS, Patient Assessments, and Altering destinations other than the ED.

It is also noted that the report does NOT constitute as legal advice, and each EMS company or municipality should seek the advice of their own legal counsel. This is an important point to remember in an emerging field. The New York Mobile Integrated Healthcare Association (NYMIHA), for this reason, has established a Legal and Regulatory subcommittee and brings together different stakeholders to discuss their barriers, ask questions, and work towards finding solutions. To join NYMIHA and any of our committee’s REGISTER HERE

Section II: EMS Triggers
This part of the report assesses current activators or dispatchers (physician, nurse, patient or family, social worker, etc) and the triggers initiating the EMS activation, which include 9-1-1 calls, non-emergency calls and online forms, just to name a few. After extensive review of examples of existing EMS triggers in different states, they concluded that since some areas only address 9-1-1 EMS triggers, the state or local development of more flexible protocols using any entity’s current legal authority could provide necessary oversight and procedures for things such as home visits or referrals originating from clinics or the health department.

Another aspect of this section deals with reimbursement for services and the fact that EMS can be provided directly by municipalities, or by a wide variety of entities such as volunteer, for-profit, or hospital-based. For example, JeffSTAT ambulances operated by Thomas Jefferson University Hospitals directly pay for supplies and services while the CP program in Wake County, North Carolina receives direct support from the county for health fairs and vaccination campaigns. The authors conclude that:

“To support efficient use of CP/MIH or similar programs, public and private sector entities must equitably share costs for essential resources and benefits of core services through contractual terms that seek advance agreements on issues of allocation”.

Furthermore, each state or municipality may contract providers in different ways. Fire departments may exclusively provide services but if they do not provide EMS, mayors and city councils may exclusively grant contracts. California, for example, has established a lengthy bidding system. The authors recommend that localities should check their contracts and local processes, and in places where they are limited, they should consider seeking exceptions for CP initiatives.

The final topic of this section regards the liability surrounding EMS responses. They include several court cases from non-CP events, including a Supreme Court case about failure to respond. They conclude, based on these cases, that if programs are framed as a benefit to an entire community, rather than to a specific individual, they cannot be held liable for a ‘special duty’. They conclude:

“…Programs seeking to reduce their potential liability may frame implementation in broad terms related to communal health benefits rather than specific health services for identified persons.”

Section III: Patient Assessment

This has been one of the biggest conversations in the evolving world of EMS. One factor making it more complicated is that scope of practice varies, depending on the state. States have different numbers of recognized EMT levels, for example: Florida, 2; Georgia, 3; Idaho, 4; and Mississippi, 5. Accordingly, authorized activities for EMTs are different in each state. In places like Utah, the National Highway Traffic Safety Administration (NHTSA) standards have been adopted, while in many other states, activities beyond this standard have been authorized, often involving real-time interaction with phsyicians. The authors suggest that authorizing EMTs in a range of activities rather than a specific task would facilitate expanded roles of CP without changing legal scopes of practice. Standard-of-care would be maintained, because the standard-of-care is by definition the standard by which to evaluate whether someone appropriately performed within ‘scope of practice’. Furthermore, worries about liability increase with more opportunities for patient contact, increased history taking, and different types of patient care. They conclude:

“Adherence to appropriate decision making tools (protocols and standing orders), medical supervision, and consultation requirements mitigates the risk of overstepping clinical decision-making authority. Viewing follow-up care and similar actions as a continuation of, or prelude to, care by other medical professionals reflects key legal distinctions between medical and field diagnoses.”

More specifically, CP initiatives including follow-up care, prescription assistance, and chronic disease management could be handled as an extension of care rather than an independent service.

EMS systems are also restricted to where they can officially operate. As the article points out, in California, statutes dictate…”at the scene of an emergency, during transport of the sick or injured, or during inter-facility transfer.” So, the upcoming programs in California were granted waivers for specific pilot projects by the California Emergency Medical Association. Other states grant specific situations, such as acting as hospital personnel during nursing shortages (Idaho). The authors provide specific exceptions and special permissions from several other states and warn that non-emergency care by EMS in some places “may exceed lawful scopes of practice.” However, in places where the scope of practice is broadly defined, some non-emergent activities might already be possible. Further conclusions in this section suggest that even though medical professional oversight and supervision is required for EMS activities, expanding the use of decision-support tools and centralized, on-line supervision models for CP would increase supervision potential of the current EMS personnel. Adherrance to medical consultation, observance of protocols and standing orders would ensure EMS providers can have an expanded role that complies with established standards-of-care.

Section IV: Alternate Destinations

CP programs that do not explicitly authorize alternative destinations for patients may rely on broad and flexible statutes and regulations allowing sufficient discretion to alter destinations through protocols and supporting flowcharts. Waivers may also permit pilot programs to transport patients to alternative destinations, although many jurisdictions mandate EMS to transport to Emergency Departments. If EMS licensing is based on necessity, this can limit opportunities to alter destinations in CP projects; however, state and local officials with discretionary authority to approve ambulance licensure may interpret respective regulations to include such programs, especially those involving non-emergency transportation.

The funding for EMS is often linked to ED transport as well, see the Emergency Medical Treatment and Labor Act, and the last part of the report explains many avenues of reimbursement from private-insurers, to how the Affordable Care Act provides possible coverage through the 10 Essential Health Benefits. The latter of which several states have expanded upon to facilitate CP and MIH initiatives.

In summation, they conclude that CP has the potential to increase access to health care, decrease costs, and improve patient health outcomes but is faced with legal and policy barriers with the usage of EMS outside of the current emergency framework. “The rapid and extensive development of these programs is contingent on successful navigation and resolution of key law and policy issues among partners within and across jurisdictions.”

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