Ambulances held hostage: Can the hospital make you stay?

By Doug Wolfberg, Esq.; and Steve Wirth, Esq.

Ambulances in virtually every part of the United States are experiencing significant delays while offloading patients in hospital emergency departments. While ED offload delays have long been a fact of EMS life in larger cities, the crisis has now infiltrated suburban and even rural areas of the country. [Fill out the form on this page to download your copy of “Ambulances held hostage,” a guide to hospital bed delays.]

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.”

A common thread of this crisis is that EMS personnel and ambulance vehicles are being involuntarily held at hospital EDs – or hospital parking lots – until the hospital staff indicate that they are ready to “accept” the patient handoff. In most cases, hospital staff imply – or even directly state – that the EMS personnel are legally responsible for patient care until transfer is accepted by hospital staff. Ambulances and their crews are therefore held hostage, sometimes for hours on end, by hospitals who compel EMS personnel to remain with the patient until such time as the hospital indicates its willingness to accept responsibility for care.

Essentially, hospitals are improperly making their staffing problem an EMS staffing problem by not promptly accepting patients. And the problem of hospital bed delays has placed incredible added burdens on EMS agencies nationwide.

Put simply, these extended hospital bed delays deprive communities of the already-scarce EMS resources that may be needed in emergencies. The crisis also takes a human toll on EMS providers and wreaks economic havoc on EMS agencies. Many EMS personnel have experienced unnecessary stress, frustration, fatigue and feelings of helplessness as a direct result of extended hospital bed delays, as they wait “on the wall” of a hospital ED, impairing their ability to practice their profession. This adds yet another negative impact onto an already fragile EMS system nationwide. On top of that, EMS agencies have been forced to foot the bill with overtime and countless non-productive unit hours of deployment as EMS crews rack up substantial amounts of unproductive time waiting in a hallway or sitting idly in hospital parking lots at the mercy of hospital staff.

There are no easy answers to this multi-layered crisis. Collaboration and discussion between EMS agencies, their hospital partners and oversight/regulatory agencies to develop practical solutions to this crisis is essential. But one thing has become crystal clear: these discussions and this collaboration needs to happen on a level playing field, and the field is currently not level. That playing field can be leveled, and productive discussions can be held and solutions found, if all the parties accept the following fact under federal law:

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.

Once hospitals and policymakers recognize this fundamental fact, then fair and appropriate discussions can take place.

Patients are the legal responsibility of the hospital once on hospital property

EMTALA, the Emergency Medical Treatment and Active Labor Act, is a Federal law that applies to all acute care hospitals in the U.S. that accept Medicare (which is virtually all hospitals) [1]. Under EMTALA, whenever an individual presents on hospital property with a possible emergency medical condition, the hospital has a Federal statutory duty of care to the patient. “Hospital property,” by the way, includes more than just the ED; the legal definition 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 [2].

For this reason, hospitals cannot delay their EMTALA obligations by forcing ambulance personnel to wait in a hallway or in the parking lot with the patient. Whether the patient and EMS crew are in the ED, in a hallway, in a waiting room or in the parking lot, they are on the hospital’s property and the patient is the hospital’s legal responsibility under Federal law.

Similarly, hospitals cannot delay their assumption of legal responsibility for the patient by “ordering” EMS personnel to remain with the patient and refusing to “accept” the patient until hospital staff indicate they are ready for the handoff of care. The Centers for Medicare and Medicaid Services (CMS), which oversees EMTALA enforcement, has a clear policy on this, which states [3]:

Hospitals that deliberately delay moving an individual from an EMS stretcher to an emergency department bed do not thereby delay the point in time at which their EMTALA obligation begins. Furthermore, such a practice of “parking” patients arriving via EMS, refusing to release EMS equipment or personnel, jeopardizes patient health and adversely impacts the ability of the EMS personnel to provide emergency response services to the rest of the community. Hospitals that “park” patients [with EMS] may also find themselves in violation of 42 CFR 482.55, the Hospital Condition of Participation for Emergency Services.

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.

Hospitals can ask EMS to remain with the patient – and EMS can say “no”

The Federal guidelines also make it clear that in cases where the ED staff is busy with other patients, “... it could under those circumstances be reasonable for the hospital to ask the EMS provider to stay with the individual until such time as there were ED staff available to provide care ...” So, Federal rules clearly indicate that the hospital can ask EMS to remain with the patient.

But inherent in the right of a hospital to “ask” EMS to do something it is not legally required to do is also the right of EMS to say “no” to that request when they need to get back in service for the next call.

“Asking” clearly means that acceptance of the request is discretionary by the party being asked.

It is critical that discussions between EMS systems and hospitals occur to address this serious problem. But those discussions must begin from a point of mutual understanding of the law. 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.

Diversionary orders do not change the nature of the hospital’s responsibility

Some hospitals, incorrectly, believe that their legal obligations to the patient are excused or delayed if they issued a “diversionary order” to the incoming ambulance prior to arrival on the hospital’s property. While Federal regulations do permit hospitals to declare diversionary status when the hospital lacks the staff or facilities to accept additional emergency patients, the very same regulation clearly says this:

If, however, the ambulance staff disregards the hospital’s diversion instructions and transports the individual onto hospital property, the individual is considered to have come to the emergency department.

Therefore, it is clear that “diversionary orders” are legally diversionary requests. Hospitals have the same legal responsibilities to the patient once the patient reaches hospital property whether they are on diversionary status or not. The physical presence of the patient on the hospital’s property triggers the hospital’s legal obligations to the patient either way.

It doesn’t matter whose gurney the patient is on

Many hospitals incorrectly believe that the patient remains the responsibility of the EMS crew for as long as the patient remains on an EMS stretcher. The Federal regulations make it clear that it doesn’t matter whether the patient is on the ambulance cot, in a waiting room chair, on a floor, in the ambulance in the parking lot, or any other part of the hospital’s property, for that matter. A patient with a potential emergency medical condition on the hospital’s property is the hospital’s legal responsibility in all such cases.

The absurdity of the belief that a patient isn’t the responsibility of the hospital so long as the patient remains on an EMS gurney is easily illustrated: If the EMS staff were to leave with the patient still on the EMS stretcher, would the hospital then never be able to take responsibility for the patient, because the crew left and is no longer available to transfer to patient to a hospital bed? Of course not.

EMS regulatory agency policies to the contrary are counterproductive – and probably illegal

Incredibly, a few EMS regulatory agencies (primarily at the regional or county levels) have issued policies, protocols and directives purporting to “order” EMS personnel to remain with patients inside hospitals until the handoff of care is “accepted” by the hospital. First, such policy is quite likely in violation of Federal law, as discussed above. Since Federal law clearly regulates this issue, state or local EMS policies to the contrary are quite likely preempted – that is, superseded – by Federal law, which clearly makes the hospital legally responsible for patients on their property.

Beyond the likely illegality of such a policy, it is hard to believe that some EMS oversight agencies, which are supposed to support, promote and improve EMS, are instead trying to use their authority over the EMS system to benefit hospitals and their staff – seemingly oblivious to the equally critical staffing crisis that EMS agencies are experiencing today. When EMS crews are forced to wait with patients in hospital EDs, this must be called what it is: a forced financial subsidy of hospitals by EMS systems to care for hospital patients. Hospital bed delays shortchange communities of EMS resources while ambulances are forced to remain with hospital patients inside the hospital. It seems incredible that any EMS oversight agency would pursue a policy that they know will deprive communities of vital EMS resources and undermine the financial sustainability of an EMS system.

Forced EMS subsidies to hospitals probably violate the federal anti-kickback statute

Every minute a hospital patient is attended to by an EMS practitioner is a minute the hospital does not have to pay its own staff to attend to the patient. And of course, these situations are not measured in minutes – they are usually measured in hours. Unit hour costs are in the hundreds of dollars per hour for most EMS agencies. Therefore, hospital bed delays where EMS crews are (wrongly) compelled to remain with patients for prolonged periods of time cost EMS agencies tens or hundreds of thousands of dollars. It also confers upon hospitals tens or hundreds of thousands of dollars of free services – “remuneration” – which is a clear financial benefit to the hospital, conferred by the EMS agency. Where financial remuneration exists between parties that are in a position to make patient referrals to one another, the Federal Anti-Kickback Statute (AKS) is likely violated.

Violation of the 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.

Remember: patient care is the goal

It is vitally important that hospitals, EMS agencies and regulators understand the contours of the legal rights and responsibilities of all parties in the multi-faceted hospital bed delay issue. Only then can fair and appropriate discussions occur to address the problem.

That said, all parties should remember that providing the best possible patient care is always the goal. Even though a patient becomes a hospital patient once on the hospital’s property, and EMS crews remaining with the patient is thereafter purely voluntary under Federal law, that does not mean it’s appropriate in all cases for EMS to leave immediately upon delivering the patient to the hospital. For instance, if a patient is in cardiac arrest, the EMS crew should absolutely continue resuscitative efforts inside the hospital until care is properly transferred to the hospital staff. It would be indefensible to stop resuscitation or withdraw critical life-sustaining measures upon arrival on hospital property merely because Federal law assigns legal responsibility to the hospital. The professional and ethical duties as caregivers compels EMS staff to continue to provide necessary treatment for the patient in such cases.

Beyond cardiac arrest cases, there are other types of patients who require continuous, active care or monitoring by EMS personnel until the hospital staff can take over. In truly serious or emergent cases, the hospital has a duty to prioritize these patients over less serious cases presently in the ED. So, the hospital cannot use EMS crews as a crutch and assume that they can delay acceptance of the EMS patient to care for other patients who may be in less serious condition than the EMS patient.

The bottom line is that everyone needs to act in the best interests of the patient – EMS included. But that cannot extend to hospitals taking advantage of EMS crews, compelling them to remain with hospital patients for unconscionably long periods of time. In fact, in many systems, 20-minute ambulance patient offload times have become a de facto maximum time standard (though we note that 20 minutes – a full third of an hour – is still a fairly long period to tie up and ambulance and its crew).

About the authors

Doug Wolfberg and Steve Wirth are EMS attorneys and founders of Page, Wolfberg & Wirth, the nation’s preeminent EMS law firm. Both served as longtime EMS practitioners and EMS system administrators prior to attending law school. Both are among the nation’s most respected EMS leaders and each have over 40 years of EMS industry experience.

References

1. 42 U.S.C. § 1395dd et seq

2. 42 C.F.R. § 413.65

3. CMS State Operations Manual, Appendix V, §489.24(a)(1)(i)

4. 42 C.F.R. § 489.24(b)(4)

Fill out the form on this page to download your copy of “Ambulances held hostage,” a guide to hospital bed delays.