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From Pinnacle: Legal Concerns for EMS Providers
In a recent court case, a firefighter in Ohio was suspended for making comments at a city council meeting to the effect that the city’s decision to disband the dive rescue team for budget reasons led to the drowning deaths of two children. The firefighter was ordered to serve unpaid suspension, equivalent to three 24-hour shifts, on grounds of insubordination, malfeasance, misfeasance, dishonesty, failure of good behavior, and conduct unbecoming of an officer.
The firefighter sued the city claiming that his first amendment rights were violated.
At the Pinnacle EMS conference in San Antonio on July 27, 2023, two legal experts with thorough knowledge of EMS regulations provided key updates and lessons to keep EMS providers and agency leaders in compliance and free from risk of legal action.
Kevin Fairlie, JD, MHA, is founding member of Fairlie Law LLC, and practices in the areas of health care regulatory compliance, corporate and transactional law, and general health care counsel with a specialization in EMS. John Murphy, JD, is a retired firefighter and attorney who specializes in responder wellness and risk management.
Skyrocketing HIPAA complaints, employee discrimination charges, new OIG oversight for Medicaid ambulance payments—there's a lot going on in the world of regulatory compliance and you need to be on top of it.
Main Areas of Legal Concern in EMS
Though his professional background lies in the fire service, Murphy’s points apply to an EMS audience as well. Some issues include:
- Behavioral health and suicides
- AI-written (computer-generated) incident reports
- Driver training and accident prevention
- Driving and response liability
- Hiring and promotional processes
- Personnel issues (discrimination, harassment, bullying, sexual misconduct)
- Social media and first amendment rights
Potential areas of discrimination can include pregnant women requesting special accommodations, employees requesting days off on religious holidays, wearing facial hair and more, said Murphy. Documentation of all incidents and conversations surrounding these issues is essential, as well as educating your company’s leaders on what discrimination looks like. “Every document you create is protection for you and your agency,” he said.
Ambulance Services Supplemental Payment Program
Fairlie shared with his audience that just last week, the Office of Inspector General announced an audit of the Ambulance Services Supplemental Payment Program and urged the agency administrators in his audience who participate in the program to be aware of it. The announcement read:
“Some States have implemented uncompensated care payment programs that allow ambulance providers to receive supplemental payments for services provided to Medicaid beneficiaries and uninsured patients. We will conduct audits of selected States to determine whether the States' claims for Federal reimbursement for supplement payments to these providers complied with Federal and State requirements.”
This could include auditing the reports of select agencies within that state, said Fairlie.
“This is a game-changer,” he said. “You could be under investigation and not even know it.” There are serious financial implications for your agency, since by signing the report, you attest that everything contained within the report is accurate and within compliance of all applicable state and federal laws.
Steps to take, according to Fairlie:
- Make every effort to ensure your information is correct
- Take advantage of the audit process: Don’t just agree with their initial audit findings and changes
HIPAA Complaints Skyrocket
Finally, HIPAA complaints are soaring and HHS has created a new enforcement office to respond to incidents, Fairlie concluded. Data breaches increased by 58% between 2017 and 2021. HIPAA-related complaints skyrocketed by 25% year-over-year to 34,077 complaints in 2021.
In response, the HHS has created three new divisions: an Enforcement Division, Policy Division and Strategic Planning Division.
Blow the dust off your HIPAA policy manual back in your office and conduct renewed staff trainings, Fairlie advised his audience. HIPAA is back in the spotlight and regulators are watching. c
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John Murphy is great! He receives my free, monthly Fire & EMS Law newsletters - the EMS case summaries are in Chap. 13. If you or any of your readers would like to receive, just send me an e-mail request to be added to our University of Cincinnati listserv.
2023: FIRE & EMS LAW – MONTHLY NEWSLETTERS: monthly review of recent court decisions [send e-mail if wish to be added to our free listserv]: https://ceas.uc.edu/academics/departments/aerospace-engineering-mechanics/fire-science/fire-service-law.html
Aug. newsletter will include this important case.
MI: EMS PRONOUNCED PATIENT DEAD – ALIVE AT FUNERAL HOME - EMS QUALIFIED IMMUNITY / CITY NOT LIABLE
On July 26, 2023, in Howard T. Linden, as Personal Representative of the Estate of Timesha Beauchamp v. City of Southfield, Michigan, et al., the U.S. Court of Appeals for 6th Circuit (Cincinnati) held (3 to 0) that the trial court judge properly dismissed the lawsuit, holding that that the paramedics enjoyed qualified immunity, and therefore the City is also not liable. On Aug. 23, 2020, EMS were called to home of a 20-year-old woman with cerebral palsy who was unresponsive. After CPR and ventilation with a bag valve mask, the family was told she had died. However, on three occasions family members said she appeared to still be breathing and the monitor showed electrical activity. When at funeral home, the embalmer saw her chest rising; she died six weeks later. The Court rejected plaintiff’s “state-created danger” theory since EMS did not expose the patient to “private acts of violence.” The Court also rejected the “failure to train” liability for the City, since the lawsuit complaint contained no factual allegations about their EMS training. https://www.opn.ca6.uscourts.gov/opinions.pdf/23a0156p-06.pdf
—Lawrence Bennett