The post-reform healthcare system is entering a new era. Congress passed the Affordable Care Act (ACA). The Supreme Court upheld most of it. States are making their Medicaid expansion decisions. The dust is settling. The law is on track for full implementation in 2014.
Much has been said about the challenges and opportunities for EMS in the post-ACA world. Some forward-thinking systems are already implementing community paramedicine programs, aligning with accountable care organizations (ACOs) and working with hospitals to reduce preventable readmissions. Systems notable for their early embrace of these new models include MedStar in Texas, the Western Eagle County Ambulance District in Colorado, Wake County in North Carolina, REMSA in Nevada, and others in Alaska, Minnesota and elsewhere. This change is coming mostly from the bottom up, with progressive local EMS systems driving the train. While some states, including Minnesota, Maine and Colorado, are making legislative strides at the state level and helping to lead the way, other state EMS agencies may lack the time, staff, legislative mandate or other resources to be able to help their local EMS agencies fully adapt and respond to the changing healthcare marketplace.
State EMS officials are an excellent and dedicated lot. They have to implement the laws and regulations of their states. A state EMS office cannot unilaterally change its mission to embrace community paramedicine or expand providers’ scopes of practice without authorizing legislation. I have spoken with state EMS officials who are frustrated by outdated laws. Some are serving as catalysts for the positive changes systems need to adapt to the new healthcare environment. This article is meant to provide a conceptual framework—a blueprint—for some of those changes.
I’ve been in EMS for over 30 years. For the past 17 of those years, I’ve been an EMS and healthcare attorney. Prior to law school, I had the invaluable experience of working at virtually every level of EMS: I was a provider from the late 1970s through the ’80s; then in the late ’80s I served as a county EMS director and subsequently ran a three-county regional EMS system. In the early ’90s I worked at a state EMS council and served at the federal level, working inside the U.S. Department of Health and Human Services for most of 1993. That gave me a front-row “inside the beltway” seat during the first attempt at federal healthcare reform.
Having worked in EMS at the local, county, regional, statewide and federal levels, and subsequently as an attorney, I’ve come to feel different about how state EMS regulatory agencies can play their most effective roles in our system. A quarter-century ago I saw the need for strong, specific and detailed state EMS laws and regulations. The EMS system was in its adolescence at that time, and as with all adolescents, close supervision was required. Many local EMS medical directors then were well-meaning physicians—often general practitioners—whose emergency medicine experience consisted mainly of pulling occasional shifts in their community hospitals’ ERs. Few were board-eligible; fewer were board-certified. Emergency medicine as a specialty didn’t have the traction it enjoys now. EMT and paramedic training still included a lot of things that sounded like good ideas (MAST pants being one example) but had questionable scientific support. The system needed strong, centralized regulation.
Today EMS standards of care are more evidence-based. EMS education has improved substantially. Emergency medicine- and EMS-educated physicians are much more involved in the system as local, regional and state medical directors. Many EMTs and paramedics have gone on to medical school. We now have a generation of clinical leaders who have literally come up through the EMS system and understand emergency care as the specialty it is. Of course, not all areas of the country have the same access to emergency medicine-trained EMS physicians (and that is one area where state EMS agencies could continue to lead), but this new clinical leadership in EMS is proliferating even to those areas through protocol development, medical director education, and articles and other publications.
The point: There isn’t the same need for states to closely manage the local delivery of EMS as there was 25 years ago. Of course, government oversight and standards will always be necessary. Yet the EMS regulatory infrastructure—a term I use to describe state EMS laws, regulations, policies and protocols—hasn’t changed to keep pace with the current health care environment. As local EMS systems strive to act, react and adapt to a post-ACA world, it is more important than ever that the EMS regulatory infrastructure give them the tools they need to do so.
For decades the predominant state regulatory model viewed the EMS system as a transport-based commodity: People called 9-1-1, first responders and ambulances responded, and patients were transported to a local hospital. Much EMS in the United States is provided without state or local subsidy, which means provider agencies must exist entirely upon reimbursements received from Medicare, Medicaid, commercial insurers and other payers. Even many tax-subsidized EMS agencies, such as municipal third-service and fire-based systems, need the revenue from insurance reimbursement to adequately fund their systems.
The post-reform healthcare system will require EMS to be able to implement service delivery models that can generate revenue while leveraging their resources in new and different ways. In essence, EMS needs the flexibility to become more than an ambulance transport-based system. It must have the ability to morph into a true mobile healthcare delivery system. Therefore, the EMS regulatory infrastructure must be in place to encourage innovation and flexibility.
Here are five specific areas where states can update their regulatory infrastructures to facilitate full EMS entry into this new healthcare paradigm:
1. Reform state scope of practice regulations
First, scope of practice laws and regulations should be restructured to allow for local flexibility under the supervision of qualified EMS medical directors. There’s an old saying that “all politics are local.” So is the delivery of prehospital care. Local EMS physicians direct that care through prospective, concurrent and retrospective medical control. Qualified EMS medical directors, working in close concert with their local agency directors, are best positioned to know the needs of their communities when it comes to EMS care. If community health needs can best be met by re-educating the existing army of EMS providers to also furnish disease management, preventive care and home-based healthcare services, they should be able to do that.
One state EMS official told me that while he thinks state EMS offices would generally be in favor of re-tooling its EMS provider scope of practice regulations, it would be hard to achieve consensus among medical directors and other stakeholders from urban, rural and suburban areas across the state. This is precisely why, in my view, local EMS medical directors should have scope-of-practice flexibility within broad state guidelines. Statewide “consensus” is often code for “the least common denominator we could all agree on.” The perceived need for “consensus” in states where stakeholders differ often holds back progress. Local flexibility obviates the need for a statewide consensus on each and every detail, especially when sometimes the only consensus that can be reached is a bare minimum.
2. Increase flexibility in EMS drugs, equipment and supplies
Second, states should permit greater local flexibility for the drugs, devices and equipment used in EMS systems. For example, some states have very specific drug lists identifying the precise types and amounts of medications and solutions that must be carried on ambulances. Over the past year or two, external forces have led to critical shortages of many drugs, leading some EMS systems to use expired medications or devise other work-arounds. If states could require categories of medications (anti-arrhythmics, analgesics, sedatives, etc.) instead of specific drugs, then local EMS medical directors could better respond to medication shortages and other external threats, while at the same time incorporating the latest evidence-based treatments into local protocols.
3. Allow protocols to embrace alternative deployment and clinical models
Third, state protocols should be restructured to ensure they do not unduly restrict the treatment and deployment options local EMS systems have. Not every 9-1-1 call merits a full-blown lights-and-sirens response, and not every response needs to result in the transport of a patient to a hospital. Hospital care is expensive, and often the necessary interventions, treatment or even just patient education can be provided without the need for transport. State protocols should allow for local flexibility in these kinds of clinical, deployment and operational decisions.
4. Reform reimbursement methodologies
Fourth, states should become leaders in implementing new reimbursement methodologies for the new mobile healthcare delivery models emerging in the wake of the ACA. Old reimbursement formulas are outdated. Most commercial insurers and state Medicaid programs (as well as Medicare at the federal level) pay only for ambulance transportation services. That is shortsighted. On the other end of each transport lurks a hospital bill that will be many times greater than the ambulance bill. The laws regulating state Medicaid programs and commercial insurance plans could be adjusted to recognize the economic efficiency that can come with paying EMS agencies for non-transport options: community paramedicine, treat-and-release and other alternative service delivery models. Minnesota is a good example of a state that was out front in enacting laws to implement community paramedicine education—and then providing state Medicaid reimbursement for those services. State ambulance associations and other EMS advocacy groups can work to bring about these same changes in their states.
5. Protect innovation from turf wars
Finally, the traditional turf wars in EMS have been public vs. private, hospital-based vs. independent, etc. The new competitive battlefields won’t just be within the EMS family—they will be external as well. As EMS embraces community paramedicine and mobile healthcare, we can expect the new turf wars to come from home health agencies, the nursing profession and other similarly situated competitors. These groups will heavily lobby state legislators and regulators to protect their turf from EMS upstarts—and the hard reality is that these groups are usually much better funded than the EMS lobby. State EMS leaders can work to lay the groundwork with their state legislators and regulators to educate them on the many benefits that can come with the diversification of EMS into mobile healthcare—and lobby them to resist the pressure to enact laws and regulations that exist merely to protect the turf of other sectors of the healthcare industry. That will only stifle the creative lower-cost delivery options emerging.
These are just a few areas where state EMS regulatory infrastructures can be updated to allow local systems to change and adapt in ways that will ensure their place at the new healthcare table. EMS is morphing into mobile healthcare. Likewise, the role of the state EMS regulatory agency can become one of a guiding hand—offering expertise, leadership and technical assistance to help local EMS agencies adapt, succeed and ultimately thrive by responding to the healthcare needs of their communities. A top-down regulatory model without flexibility won’t allow local systems to position themselves to succeed in a post-healthcare reform world.
Doug Wolfberg is an attorney and founding partner of Page, Wolfberg & Wirth, a national EMS law firm. He has been involved in EMS for more than 30 years as a field provider, county director and state council administrator. He also worked at the U.S. Department of Health and Human Services. He advises EMS industry clients on a wide range of business, legal and operational issues. Contact him at firstname.lastname@example.org.