Accusations of false claims and negligence can send shivers down the spines of even the most careful EMS administrators. During “2019 Legal Update” at Pinnacle July 26, two experienced EMS attorneys brought attendees up to speed on current EMS case law and how providers and agencies can protect themselves.
In April 2019, a compliance document was distributed to U.S. attorneys across the country to guide them in investigating agencies for Medicare compliance, said Kevin Fairlie, JD, an attorney at Fairlie Law LLC in St. Louis. The document provides a framework for what investigators should look for when assessing an EMS corporation’s compliance.
The document offers strategies that can help protect you if a claim should be levied, said Fairlie. Key steps include:
Risk assessment: Do you have a compliance program tailored for EMS? Are you in compliance with state and federal anti-kickback statutes? Are you billing for the appropriate level of service?
Policies and procedures: Have a code of conduct in place.
Training. Employee training on the compliance program is essential.
A confidential reporting structure. You should have a third-party toll-free anonymous hotline to report breaches in conduct and documentation.
Monitoring third parties for billing compliance. Is there a system of checks and balances? Does your billing company have the proper level of expertise?
Is your compliance program being implemented correctly? (A paper program won’t cut it. It must be updated and revised periodically).
Commitment by leadership. How involved is executive-level management in the compliance program?
Continuous updates and review. Make sure your compliance program is continually evolving to reflect legislative changes.
Fairlie recently represented ten municipal EMS agencies who had outsourced their billing to third parties. Each was under investigation for improperly billing Medicare by the OIG. The government accused the services of billing BLS transports at the ALS level.
Because billing was outsourced, the agencies had no idea they may have been billing improperly. Civil penalties under the False Claim Act can range from $10,781 to $21,563 per individual claim, plus three times the amount of damages the government sustains.
“All these clients were in shock,” said Fairlie. “They had no idea they did anything wrong.”
Liability under the False Claims Act requires that a defendant must act “knowingly,” which also includes “reckless disregard” of the truth or falsity of the information, giving the government wide latitude in bringing a suit. Under the statute, the OIG can take the position that not having a compliance program in place constitutes reckless disregard. “You can’t just sit back and have no structure to attempt to be doing the right thing,” he said. “This was extremely hard to defend.”
Ultimately the agencies settled for a multiplier of 1.3 times the total of the six-year overpayment. The lesson learned is to implement a compliance program and make sure it meets DOJ guidance. “It’s not that hard,” Fairlie concluded. “You don’t think you’re going to need it. [But] I’ve got 10 people you can talk to that will tell you you absolutely need a compliance program.”
EMS Litigation on the Rise
Matthew Streger, JD, an attorney with Keavney & Streger LLC in New Jersey, discussed EMS case law and highlighted notable cases involving EMS. Streger performed a thorough search across legal databases and noted a significant increase in the numbers of cases being brought against EMS providers and services. “We are seeing an uptick,” he said. “There is a dramatic increase in the amount of litigation.”
Major liability areas that arose during Streger’s search included:
FLSA overtime. “We’re still having problems paying people overtime,” Streger said. “There is no excuse. There should be zero of these claims. This is an unforced error.”
Medicare liability: qui tam, false claims, and overpayment comprise the majority of these suits.
Use of force and false imprisonment. What we’re not seeing, Streger said, are refusal-of-care charges, which runs counter to what’s typically stressed in education. “Don’t take patients against their will,” he stressed.
Harassment and discrimination. “We’re still seeing massive amounts of employment liability," according to Streger.
Motor vehicle accidents. “This is something we can absolutely control,” said Streger. “This is causing liability for EMS providers.”
Negligence—clinical mistakes, patient drops, dispatch errors, and improper transport destinations make up most of these claims. “Bad medicine still gets you sued,” he said. Again, there were zero cases involving refusals.
Air medical reimbursement—by far the largest uptick in cases.
Streger concluded by outlining key cases to illustrate the current landscape of EMS case law, including false imprisonment claims in which EMS took patients against their will; allegations of excessive force for sedating a patient with excited delirium; an allegation that minority firefighters were denied opportunities to drive the chief and train on the ladder; a California case in which a flight paramedic was discharged for volunteering as a firefighter-paramedic rather than working assigned shifts; a Michigan claim in which an EMS employee was discharged for a medication error, while she said it was actually retaliation for sustaining repeated on-the-job injuries; a Georgia case in which a whistleblower EMS employee was discharged after alleging false documentation by an employee; a charge of refusal to provide medical care and accommodation to a witness with a disability at a murder scene; and a First Amendment claim vs. a fire chief as retaliation for being terminated due to social media postings.
The take-home lesson, according to Streger: EMS litigation is on the rise. Watch out for ‘pro se’ litigants, who represent their own cases in court without an attorney; be aware that you may be recorded at all times; be careful of use of force and delay in care cases; and protect yourself from negligence and MVA issues with ongoing employee training, education and monitoring.