Our nation is being pummeled by the COVID-19 pandemic, and ambulance service suppliers and providers have not been spared the human and economic pain. Many EMS agencies have seen a substantial decrease in ambulance service volume and associated revenue. Some have also experienced a shortage of EMS personnel because of COVID-19 infections or exposures requiring hospitalization or quarantine, and in a few instances even death. There are also other burdens they are encountering—too many to mention—in dealing with this COVID-19 nightmare. They need help to survive and continue to provide the EMS needed by the public.
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The CARES Act, which provides payroll protection loans, stimulus payments and Medicare advance payments, has provided some relief to help EMS agencies keep afloat during the pandemic. The Centers of Medicare and Medicaid Services (CMS) and many states have also taken steps to assist EMS agencies navigate through the pandemic. For example, CMS amended a regulation on April 6, 2020, to allow for reimbursement of a ground ambulance transport of a Medicare beneficiary during a public health emergency to a destination other than an historically accepted Medicare-covered destination.
The amendment simply requires the alternative destination be: 1) equipped to treat the condition of the patient, and 2) a location to which state or local EMS protocols allow the patient to be transported. While Medicare reimbursement still requires a medically necessary ambulance transport, that transport, under this amendment, may be to a more distant appropriate location rather than a closer acceptable location, as state or local law or protocol permit. The amendments do not apply just to COVID-19 patients, but all patients as there may be a need to transport non-COVID patients to an alternate destination in light of the strain on resources placed on traditional hospitals during the pandemic.
Most states by statute, regulation or protocol specify facilities to which a patient must generally be transported by ambulance when a medically necessary ambulance transport is required after an emergency response. So, even though CMS is now allowing transport of patients to “alternative destinations,” EMS agencies must check their state law to see if the state EMS Act permits this temporary change. Many states have added such flexibility and are also waiving the requirement to transport a patient to a receiving facility.
Many states have also suspended some of the staffing requirements during the pandemic or have reduced the requirements to allow for lesser-certified personnel to meet the staffing requirements. For example, the Pennsylvania minimum staffing standard of two EMS providers for BLS and intermediate ALS ambulances was suspended and only the higher level EMS provider and an EMS vehicle operator are required to staff the ambulance. While the Pennsylvania requirement of two EMS providers for ALS ambulances remains, the minimum requirement for the lower level provider is reduced from an EMT to an emergency medical responder (EMR).
Medicare reimbursement is not adversely affected by these permitted departures from the state’s regulatory staffing requirements. That is because the Medicare staffing requirements are not violated by these changes. Medicare regulations require the ambulance be staffed by at least two people who meet the requirements of state and local law and that one of those persons be at least an EMT or paramedic. The Medicare staffing requirements continue to be satisfied under the state-permitted departures from its staffing regulations.
CMS has also taken several other steps to ease the burden on ambulance services during the public health emergency. That includes: delaying ambulance service revalidation, allowing crew members to sign a non-COVID-19 or suspected COVID-19 patient’s assignment of benefits if good cause and the patient’s verbal consent is documented, relaxing standards from where telemedicine calls may originate, postponing the data collection period to the 2021 calendar or fiscal year for those ambulance services previously selected for cost data collection for the 2020 initial year, and suspending the 2% sequestration from May 1, 2020, through December 31, 2020.
The CMS actions and the steps taken by many states are examples of how administrative agencies eased the burdens this pandemic and public health emergency has placed on EMS agencies and hospitals.
The bottom line is that during public health and other disaster emergencies, it is critical that EMS agencies constantly monitor statutory enactments, regulatory actions, notices and other documents issued by federal, state and local agencies. That will enable them to be aware of relief that may be afforded to them during those difficult times and to take advantage of such opportunities. That just may help EMS weather the storm.
Ken Brody is an attorney with Page, Wolfberg & Wirth, LLC. and has been involved with EMS regulatory and compliance matters throughout much of his legal career spanning over four decades. Prior to joining PWW, Ken was Chief Counsel for the Bureau of EMS for the Commonwealth of Pennsylvania and was instrumental in the development of that state’s EMS Act and regulations. He can be reached at: [email protected]
For over 20 years, PWW has been the nation’s leading EMS industry law firm. PWW attorneys and consultants have decades of hands-on experience providing EMS, managing ambulance services and advising public, private and nonprofit clients across the U.S. PWW helps EMS agencies with reimbursement, compliance, HR, privacy and business issues, and provides training on documentation, liability, leadership, reimbursement and more. Visit the firm’s website at www.pwwemslaw.com. This article is not intended as legal advice.