Ambulances held hostage: EMS strategies for reducing ambulance offload times

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

The issue of hospital bed delays that cause extended ambulance patient offload times (APOT) is complex and involves many moving parts. What is beyond dispute is that extended APOT is disruptive to EMS systems, can compromise patient care, is a source of frustration and burnout for EMS personnel, and drives up healthcare costs, including the costs of providing EMS and emergency ambulance services to a community. [Fill out the form on this page to download the guide: “Ambulances held hostage: If you leave,” for quick reference tips on how to communicate and document you are laving a patient at the hospital.]

In the first two installments of this series, we’ve tried to make the case that EMS agencies and their hospital partners should engage in collaborative discussions and find solutions together to this vexing crisis. We have also clearly described why patients are the legal responsibility of hospitals once they arrive on the facility’s property, and that EMS crews remaining with patients is voluntary under the law. We believe that discussions and collaborative efforts must start from a level playing field, rather than the incorrect assumption that EMS is required to remain with patients until hospital staff “accepts” them.

We’ve also recommended that EMS decisions on whether and for how long to stay with a hospital patient in the ED be based on documented and clinically sound policies, and we provided some strategies and suggestions in those cases where EMS decides to stay and provide continuing care to a hospital’s patients after arrival in the ED.

In this installment, we now shift gears to the rights and remedies of EMS agencies if the hospital bed delay problem cannot be satisfactorily resolved through collaboration and voluntary action on the part of their hospital counterparts. Here, we discuss essentially unilateral solutions that EMS can employ to reduce or eliminate extended APOT.

Please note that the solutions and strategies presented here are based on federal law, namely EMTALA. EMS personnel must, however, also be aware of local or state EMS laws, regulations, protocols or policies, as well as the policies and requirements of their employer, before using any of the strategies discussed here. Also note that these options are based on federal law as it exists in December 2021, and that laws are subject to change.

If you leave: Communicate with hospital staff first

If EMS decides to leave the ED prior to the physical assumption of care by hospital staff, the crew should ensure that they have communicated the presence of the patient to ED staff and provided the necessary information (verbally or in writing) to facilitate continuity of care. It is not necessary that this communication occur directly with a clinical provider; in fact, EMS providers often find that there is simply no ED staff who are willing to make themselves available to receive a verbal report (again, possibly but incorrectly believing that this prevents the EMS crew from being allowed to leave).

In cases where no ED clinical staff is available, the EMS crew can communicate with an ED administrative staff member prior to leaving. The information EMS should communicate to hospital staff prior to departure should include:

• That they are leaving
• Where the patient was left
• The general condition of the patient
• Necessary information about care provided by EMS in the field

If the crew has completed the full EMS PCR prior to the crew’s departure, then that should whenever possible be left with or transmitted to the hospital before the crew leaves. If the full PCR has not been completed, then it may be advisable to leave a basic or preliminary report with the information pertinent to continuity of care. For instance, a so-called “rip and run” form or similar type of field notes may suffice. Or, an EMS agency may wish to develop its own handoff form that summarizes the basic patient information, condition and treatment for cases where the full PCR cannot be completed prior to departure.

In all cases, EMS staff should document the following key information:

1. They informed hospital staff of the patient’s presence
2. They informed hospital staff of their imminent departure from the ED
3. They communicated the relevant patient information to the facility prior to departure
4. The identity of the person or persons to whom they communicated this information prior to departure
5. The time of departure from the ED

If you leave: Buy some cots

If the hospital knows of your patient’s presence and does not provide staff to facilitate the handoff of care, and leaving the ED is clinically appropriate, then EMS staff could consider keeping portable folding cots (like camping cots or similar) in the ambulance and transfer a patient to one of those. If the patient can tolerate a seated position, the patient could be moved to the waiting room, a wheelchair or any available chair, for that matter. EMS can then legally take its stretcher and return to service.

If your agency has extra stretchers, it can even leave the patient on the ambulance stretcher and then replace it with a spare. In these situations, we would recommend leaving a simple pre-printed instruction sheet on how to use the ambulance stretcher (that way if something happens to the patient while on that stretcher, the EMS agency would be able to assert a defense that it instructed the hospital staff on proper use of the cot).

If you leave: Use a handoff coordinator

Although the legal responsibility for the patient on hospital property clearly rests with the hospital, some EMS agencies have determined that a more efficient way of getting crews back in service promptly is to employ one or more individuals who work for the ambulance service, but who are assigned to work inside the hospital. The sole purpose of such staff, presuming this is not in any way prohibited by state law, would be to accept handoff of incoming EMS patients and monitor them until transferred to hospital staff. If EMS staff are employed for this purpose, their duties should be limited to monitoring incoming EMS patients only. There is an Anti-Kickback Statute (AKS) concern if the EMS agency confers financial benefits on the hospital. An ambulance service employee providing care for other hospital patients would raise even more AKS issues than the scenarios we have discussed.

This EMS-to-EMS handoff can occur inside the ED, but if space is not available, the EMS agency can set up a space in another available room of the hospital, or even in a staging area outside.

Can you take the patient elsewhere?

If an EMS agency is transporting a patient to a hospital that it knows is experiencing prolonged ambulance patient offload delays, in most cases, the EMS agency is free to transport the patient to a different facility. But there may be cases where the choice of a patient destination is prescribed by a specific EMS policy or protocol, and in those cases, the EMS personnel would either have to follow that protocol or follow proper procedures for an acceptable deviation from the protocol.

There may also be issues of patient choice to consider. If a patient who has the capacity to make healthcare decisions directs transport to a specific facility in your normal transport area, under most cases, such direction from the patient should be honored. But it is certainly permissible for EMS personnel to engage in a collaborative informed decision-making process with a patient, or the patient’s legally responsible decision maker, to inform them of situations in which prolonged hospital bed delays can be detrimental to the patient’s health, and to assist them in making a clinically appropriate destination decision based on the patient’s condition. In almost all cases, an informed decision by a decision-maker with legal and mental capacity – with proper crew documentation, of course – would override EMS destination protocols.

Many EMS systems report that they’ve received 911 calls from patients who are already waiting in hospital emergency departments asking to be taken by ambulance to a different facility. In most EMS systems, the dispatched EMS agency would have a duty to respond to such calls, and unless specifically prohibited by state or local law, or applicable protocol, it is legally permissible to transport the patient out of the hospital and to a different facility. Presuming the ambulance is not owned and operated by the hospital, there is no EMTALA violation on the part of the ambulance for doing so (though there well may be a violation on the part of the first hospital if it unduly delayed its required medical screening examination). Before leaving the hospital with the patient, it is a good idea to let a responsible person at the facility know that you received a 911 call, responded and were asked to transport the patient out of the hospital.

Ambulance utilization for hospital non-emergency transports: No duty to act

In addition to EMS providers being stuck on the “front end” (i.e., held in EDs to care for hospital patients being brought in by ambulance), EMS systems are also being taxed by hospitals utilizing ambulances on the “back end” to help reduce their ED patient census. Hospitals do this by calling for ambulances to perform non-emergency transports (NETs) for ED patient discharges to the patient’s home or skilled nursing facility (SNF), or to perform interfacility transports (IFTs) of ED patients to other facilities.

We have found that many facilities utilize ambulances inappropriately for NETs simply because no other means of transport are available. Ambulance services may then be left without financial recourse for NET patients who don’t meet medical necessity. Ambulance services that elect to perform NETs would be well served to implement stringent call intake processes to ensure the transports the hospital is requesting meet medical necessity requirements, or if not, that the ambulance service is paid up front for what will be a non-covered service.

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.

When all else fails, file EMTALA complaints when appropriate

Although filing a complaint with CMS does not often produce satisfying results, EMS agencies, patients and others can certainly avail themselves of their right to file an EMTALA complaint against the hospital.

• The frontline agency for receiving EMTALA complaints is the designated state survey agency. Each state designates an official with this responsibility, which is typically someone within the state Department of Health. The current list of state survey officials can be found here.
• The primary Federal agency with EMTALA complaint responsibility is the CMS regional office (RO). The current CMS listing of all ROs is found here.
• Another option for filing complaints – though primarily geared toward patients, is the CMS website, which includes a mechanism to allow Medicare beneficiaries to make complaints.
• The first 18 pages of this CMS document describe in some detail the EMTALA complaint investigation process.

We have heard quite a few reports of EMTALA complaints dying on the vine and/or the complaining EMS agencies hearing nothing whatsoever in response to the complaints. To some extent, CMS is probably just as overwhelmed with these kinds of complaints right now as EMS is overwhelmed with the offload delays they face on a daily basis. Like so many other things, this is probably a case of a squeaky wheel getting the grease, so the more frequent or more high-profile the complaint is, the more likely it will get CMS’ attention.

Along these lines, EMS agencies whose complaints get ignored by CMS may choose to communicate with their local members of Congress. Congressional inquiries can often help get CMS’ attention, and thus help prompt an appropriate investigation into the complaint.

Conclusion

The issue of hospital bed delays has many layers and creates complex and intertwined challenges for EMS agencies, hospitals, regulatory and oversight agencies, patients, and others. Addressing this problem requires a wide range of solutions. The best solutions – and the ones most likely to last – are those reached through respectful collaboration and agreement. Unfortunately, too many hospitals have done far too little to resolve their staffing and bed delay issues that are literally crippling EMS agencies and depriving communities of needed 911 ambulance service.

Ambulance services cannot continue to be involuntarily used by hospitals as a substitute for hospital staff – that is simply inappropriate and may well be illegal. EMS agencies first need to level the playing field by ensuring their hospitals understand the accurate state of the law regarding EMTALA and the hospital’s responsibilities, and then need to apply a range of solutions – preferably in collaboration with the hospital but unilaterally if necessary – to prevent EMS systems from being crippled by this crisis.

Learn more about ambulances held hostage

• A guide to hospital bed delays. FAQs and quick tips from Wolfberg and Wirth
• Can the hospital make you stay? Leveling the playing field on hospital bed delays
• Should we stay or should we go? How to decide when to leave patients at hospitals with bed delays and 3 considerations for if you stay
• Hospital bed delays: An iceberg with titanic challenges. Lessons from Pinellas County and an AIMHI EMTALA webinar

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.

Fill out the form on this page to download the guide: “Ambulances held hostage: If you leave,” for quick reference tips on how to communicate and document you are laving a patient at the hospital.