Last May, the federal Government Accountability Office (GAO) reported that Medicare pays ambulance services an average of 6% less than the cost of a transport and 17% less than the cost of a transport in some rural areas. Because Medicare is the largest EMS payer, that creates significant financial problems for ambulance services and low pay for EMTs and paramedics.
But instead of rushing to fix the problem, Congress has done nothing in response to a push by the American Ambulance Association (AAA) for a five-year 5% ambulance rate increase.
And the president’s proposed 2009 budget in addition to pending Medicaid rule changes could make matters even worse.
Medicare generally provides rate increases each January to ambulance services and other health-care providers based on the Consumer Price Index (CPI), to keep up with inflation (which was 1% in January 2008 alone). But the president proposes eliminating that inflation-based boost in fiscal years 2009, 2010 and 2011, and then providing annual increases that would be 0.65% less than the CPI.
The AAA did the math and reports the proposal would mean $1.27 billion less in Medicare payments to ambulance services during the first five years.
˙The biggest problem will come in the outlying years when services will lose money from the freeze and more money on top of that because of the reduction in the CPI increase,Ó says AAA Senior Vice President for Government Affairs Tristan North. Fortunately, he says, ˙with a Democratic Congress, this budget probably is dead on arrival, but we’re still concerned and won’t take anything for granted.Ó
The Congress must pass ˙Medicare-reliefÓ legislation by June, North says, to address a change in Medicare payments to physicians, and the AAA is hoping to convince lawmakers to include a temporary 5% increase for ambulance services in that bill.
Meanwhile, AAA leadership is working with members and others in the EMS community to craft a long-term Medicare rate solution for ambulance services in response to the GAO report. They hope to get legislation introduced to Congress in early 2009ƒand then passed.
Perhaps an even graver threat comes from Medicaid. Services may find their already ridiculously low Medicaid rates slashed as states deal with pending federal Medicaid changes that will cost them some $15 billion in revenues over the next five years, coupled with lower state incomes due to the slowing economy.
In February, for example, California slashed Medicaid reimbursement by 10% for ambulance services in that state. And the state already paid only $107 on a BLS non-emergency transport and $118 for a BLS emergency run. ˙According to our studies, it costs $562 to provide a trip in California,Ó says California Ambulance Association (CAA) President David Nevins. ˙This 10% cut is like pouring salt into the wound.Ó
In response, the CAA convinced state legislators to introduce a bill (AB 2257) that would use the national Medicare fee schedule as the basis for California’s Medicaid ambulance rate and provide regular inflation updates. ˙Our last rate increase was in 2000,Ó Nevins says.
The Georgia legislature recently looked at EMS workforce shortages in that state and determined that the problem stems from ˙falling wagesÓ for EMTs and paramedics because of low Medicare and Medicaid reimbursement. When the study was released in February, state Senator Johnny Grant, R-Milledgeville, told theAthens (Ga.) Banner-Herald,˙It became obvious that the burden these services bear vastly outweighs what they are reimbursed.Ó
VENUTI WINS 2008 JAMES O. PAGE AWARD
On March 29, Mark Venuti, director of Guardian Medical Transport, was presented with theJEMS/James O. Page Leadership Award at the EMS Today Conference and Exposition. This award is bestowed upon someone who has fought and sacrificed to enhance EMS systems and patient care, and Venuti exemplifies this to the fullest. With more than 25 years in emergency medicine, Venuti has taken on many leadership roles, including captain of the Flagstaff (Ariz.) Fire Department for 11 years, member of Arizona’s EMS council, past president of the local firefighter’s union and Arizona Ambulance Association, and other key roles. In addition, he helped start a camp for disadvantaged children and was twice named Arizona ˙firefighter of the yearÓ for valor. Fellow colleagues call him ˙humble,Ó˙Jim Page-likeÓ and ˙a legend in the growth and expansion of EMS.Ó The hope is that this torch will be carried on after Venuti retires.
D.C. & PHILLY BUDGET FOR CHANGE
Washington D.C. Mayor Adrian Fenty and Fire Chief Dennis Rubin announced Feb. 11 that the city council had appropriated $3.7 million for improvements to the troubled D.C. Fire & EMS Department. The money will be used to implement the findings of the task force as part of the settlement with the family ofNew York Timesreporter David Rosenbaum. A press release said the funds would go toward training, staff, more supervisors, expansion of the electronic patient-care reporting system and 11 new ambulances.
The next day, Philadelphia Mayor Michael Nutter announced his city would spend $3.8 million to improve its EMS system, which has recently faced complaints of long response times. According to a press release, this will pay for three ambulances, 40 more medics, overtime for existing medics, and other resources.
EMS Fares Poorly in Federal Grants
The Department of Homeland Security (DHS) reported to Congress in late January on the amount of money EMS receives via DHS grant programs. Congress had ordered DHS to compile the information by Jan. 23, 2007. DHS broke out the funds appropriated to EMS programs through the Homeland Security Grant Program, the Urban Area Security Initiative and the Fire Act grants program for fiscal 2002Ï2005. After analyzing the numbers, Advocates for EMS concluded that EMS receives only 4% of DHS funding.
EMS fared best in the fire grants program, but still received only a small percentage of the money. In fiscal 2005, for example, EMS-related programs received only $63.7 million of the $605.5 million appropriated, in 839 grants averaging $75,923. (Two percent of the fire grants are reserved for non-fire EMS agencies, but private, for-profit services aren’t eligible.)
But the International Association of Fire Chiefs (IAFC) and International Association of Fire Fighters (IAFF) still insist that all federal funding for EMS should go through the Fire Act grant program.
In late 2007, the House of Representatives authorized a new $30 million grant program for rural EMS in the ˙Farm Bill Extension Act,Ó and Senator Mary Landrieu, D-La., was prepared to introduce an amendment containing the EMS grant program to the Senate’s version of the legislation.
But on Dec. 10 the IAFC and IAFF presidents sent a letter to key senators asking them to oppose that amendment because they were ˙concerned that this proposal wouldn’t improve emergency service provision in rural areas and could have negative unintended consequences. Ú Furthermore, by including private ambulance services as eligible grantees, the proposed program also diverts public funds from bona-fide public-safety activities to profit-making organizations.Ó
Memphis EMS Chief Gary Ludwig, chair of the IAFC EMS Section, says, ˙We don’t feel the U.S. Department of Agriculture is the right agency to run an EMS grants program. Ú Instead, we’re asking Congress to fully fund the Fire and SAFER grants programs.Ó (Fire departments can use SAFER grants to hire personnel.)„
˙The IAFF and IAFC felt that the proposed amendment Ú is duplicative of existing grant programs and fails to include necessary safeguards to ensure the money would be well spent,Ó says IAFF Director of Governmental Affairs Barry Kasinitz.
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How ÂFree’ Is Free Speech?
Several recent cases have involved EMS agencies that have fired or taken actions against employees for making critical statements about their employers. This raises the question, just how ˙freeÓ is the right to free speech in the workplace?
You might be surprised to learn that most employees of private organizations (which includes most non-profit organizations) don’t have constitutional ˙free-speechÓ rights in the workplace. The National Labor Relations Act does give employees the right to organize, and the federal False Claims Act prevents employers from firing ˙whistle blowersÓ who bring cases involving Medicare fraud. However, the Constitution usually does not afford work-related First Amendment protections to private employees.
One recent case made headlines in Buffalo, N.Y., where a private ambulance service sued three employees for defamation after they reportedly made false statements to the media regarding the company’s alleged failure to respond to a ˙mutual-aidÓ call involving two police officers shot in the line of duty. This case was filed in 2008, so it’s too early to know whether the employees will ultimately be found liable in this case. But the lawsuit illustrates that there aren’t necessarily any rights to free speech in a private workplace.
Many other cases have been brought in the reverse, with former employees suing the employer alleging cases of ˙wrongful discharge.Ó In most states, however, private employers are free to discharge an employee for any reason, as long as it’s not an illegal reason or a reason that violates public policy.
In public agencies, the law does afford some ˙free speechÓ rights to employees, but not in all situations. There have been many cases where public-sector EMS employees have been terminated and have subsequently filed lawsuits claiming their terminations were in retaliation for speaking out publicly about issues involving their government employers. In a Michigan case, EMS employees argued they were fired for criticizing their township agency at a public meeting.
In a case from Kentucky, EMS employees claimed they were terminated for speaking out about claims of discrimination and preferential treatment by their employer. And in a Kansas case, employees claimed they were discharged for raising allegations of inappropriate conduct by field providers and misuse of agency resources.
These First Amendment ˙retaliatory dischargeÓ lawsuits are generally successful if the employee can prove three elements: first, that the speech was Constitutionally protected (i.e., it involved a matter of ˙public concern,Ó and not merely ˙internalÓ employment or personnel issues); second, that they were subjected to adverse action or deprived of some benefit; and third, that the protected speech was a ˙substantialÓ or a ˙motivatingÓ factor in the adverse action. On the third element, an employer may provide evidence that it would have taken the same action for other reasons, without regard to the employee’s protected speech.
This update is provided bySteve Wirth &Doug Wolfberg ofPage, Wolfberg & Wirth LLC(www.pwwemslaw.com), a national EMS, ambulance and medical transportation industry law firm.
Most reported cases of alleged free-speech violations turn on whether or not the employer had other valid reasons for taking an adverse action against a public employee (e.g., a lack of clinical competency or poor patient-care skills).
The bottom line is that free speech isn’t always ˙freeÓ in the EMS workplace.
THREE EMS RESPONDERS DIE ON HIGHWAYS
Cheryl Kiefer, an EMT with Jackson (Mich.) Community Ambulance died Jan. 26 after a vehicle struck her while she was assisting a crash victim.„Captain David Sherflick of the Brown Township (Ind.) Fire Department died when the ambulance he was driving collided head-on with an SUV Feb. 4.Captain Shane Stewart,a volunteer with the Ault-Pierce (Colo.) Fire Protection District, died Feb. 23 when the engine he was driving to a medical call went off the road and rolled over, ejecting him.