Emergency medical services (EMS) are an essential part of every community that grew out of the recognition that rapid transport to the hospital resulted in fewer fatalities in motor vehicle crashes, and essentially has been advancing on its own, even with a lack of regulation and research. The field of EMS has continued to advance at the state level adapting to the individual characteristics of the community, despite lack of government oversight (Shah, 2006).
The Affordable Care Act (ACA) has implemented a series of healthcare reforms designed to reduce healthcare spending, reduce emergency room and hospital admissions, and improve overall health through preventative healthcare (Bittle, 2015). The advent of the ACA has caused a shift in the healthcare industry.
EMS is a niche market that caters to life-saving emergency care and transportation of patients to the hospital. Medicare recognises EMS only as a transportation service and reimburses if the patient is transported to Medicare-defined medical facilities including emergency rooms, hospitals and dialysis centres (Alpert et al, 2013), with little or no regard to the medical interventions provided. Alpert et al (2013) have shown that 74% of all emergency EMS patients are transported to an emergency room, and 34.5% of these transported patients have low-acuity conditions that do not require admission to the hospital. There is a significant amount of healthcare savings to be had with the reduction of EMS transports to the emergency room. Introducing community paramedicine, a preventative health initiative in which the patient remains at home and receives no transportation to the hospital, allows EMS to join in the Affordable Care Act's objective of reducing medical admissions and allowing the patient to become involved in their own health plan.
Community paramedicine
Community paramedicine institutes medical monitoring, treatment, and interventions performed by a paramedic into the home setting (White and Wingrove, 2012). However, community paramedicine also questions the purpose of EMS. Removing the ‘emergency’ from EMS puts EMS providers in an unfamiliar non-emergency healthcare realm. Does community medicine fit within the arena of emergency medical services, emergency services, public health, public safety, home health, or primary care? Community paramedicine's parallel in the healthcare arena defines the level of legal liability (Banja and Wolf, 1987). There has been no documented study into where community paramedicine fits into the defined legal rules and regulations of the healthcare spectrum.
Varying research regarding the efficacy of community paramedicine programmes has been conducted (Millin et al, 2011; Munk, 2012; Bigham et al; 2013) ranging from community paramedics effectively reducing emergency room and hospital admissions (Schaefer et al, 2002; Mason et al, 2007), to field paramedics failing to refer qualifying patients because of ‘training not available’ (Comans et al, 2013), to fear of abandonment for failure to provide medical care (Silvestri et al, 2002). It has also emerged that paramedics in unsuccessful community paramedic programmes are lacking in the legal knowledge of the home environment.
Community paramedicine models
Mirroring the development of EMS, community paramedicine has developed to the needs of the individual community. Community paramedicine programmes have three basic models: hospitals and social services refer patients to EMS agencies' community paramedicine programme (Brown et al, 2009; Comans et al, 2013), field paramedics to refer ‘frequent flyers’ to their own community paramedicine programme (Silvestri et al, 2002; Comans et al, 2013), or field paramedics refer patients to other healthcare services, including home health organisations (Kue et al, 2009). The goal of community paramedicine programmes is to reduce superfluous, and costly, ambulance transports of patients who call for an ambulance frequently and unnecessarily for low-acuity or no-acuity medical issues (Millin et al, 2010). Legal questions arise from community paramedicine models, especially questions of negligence, consent, nontransport, and fraud.
Currently, community paramedicine educations revolve around developing paramedic knowledge and skills for the prehospital non-emergent setting. Paramedic training, usually done in house, for the community paramedicine programmes is restricted to the overall objective of the individual programme initiative (White and Wingrove, 2012). All training programmes stated additional education is provided prior to programme initiation, but neglect any mention of training in legal matters surrounding the treatment of a patient outside the established medical facility (or pre-hospital emergency and ambulance environment). Curriculum that is available is vague regarding the actual training modules (White and Wingrove, 2012).
Paramedic Education
Educational standards for Texas paramedics involve 624 hours of classroom, clinical, and field training mirroring the National EMS Education Standards set by the National Highway and Traffic Safety Administration (TAC 15.32.c.4). Paramedics are required to successfully complete an accredited programme and hold a state EMS certification, but are not required to hold a post-high school degree (TAC 15.32.c). There are no definitions for community paramedic training or standards in the Texas Health and Administration Code.
The National EMS Education Standards dedicate 1% of their suggested outline of educational standards to legal issues encountered in EMS (NHTSA, 2009); more specifically, legal issues encountered on an emergency scene or in the ambulance while treating the patient. Consent, restraint, patient refusal, confidentiality, end-of-life care, criminal actions, practising medicine, civil actions, and ethical conduct are evanescent mentions lost in the staggering amount of traditional paramedic teachings (Aehlert, 2010). The legal issues the paramedic encounters in the emergency pre-hospital environment continue, and are expanded in the non-emergency prehospital environment of community paramedicine.
Home health education
The education of the home health providers is strongly based on a legal foundation. Home health nurses are required to hold a 2–4-year college degree in nursing and be well versed in the Americans with Disabilities Act, Civil Rights Act of 1991, Rehabilitation Act of 1993, Advanced Directives Act, Texas Human Resources Code Rights of the Elderly, Texas Health and Safety Code, Code of Federal Regulations, the Social Security Act, and Medicare Fraud and Prevention Act (37 Tex Reg 4615, 97.259). Nursing administrator specific certification requires 24 hours of didactic classroom teachings; one-third of the curriculum is dedicated to legal issues (37 Tex Reg 4615, 97.259). Home health aide training is conducted by an outside agency and is specific to the community and the patient setting. The nurse is responsible for verifying competency of the home health aide in the individual patient environments and situations (Tex SB 219, 84r leg 142). Semiannual training of the ‘ten most common violations of federal and state law by home and community services' (Tex SB 219, 84r leg 142.024) is required of all home health providers.
Texas EMS regulation
Texas presents a unique regulatory environment for EMS and also community paramedicine. Broad Texas state regulations lend to a propagating atmosphere for EMS. The medical director is the determining factor of the EMS agency scope of practice (Texas Emergency Health Care Act, 773). The medical director defines skills and procedures the individual EMS providers can perform, ‘regardless of level of state certification or licensure’ (TAC 197.2.11). The medical director also ‘establish[es] the circumstances in which a patient might not be transported’ (TAC 197.36.11). The EMS provider is defined as administering care in the pre-hospital environment (to include but not limited to: scene, clinic, hospital, and home), but the precedent set by the medical director delegation ability has lead to EMS providers providing care in any environment the medical director defines. Community paramedicine programmes have been established with this delegation guide; the medical director provides medical oversight (Medical Practice Act 151).
An EMS medical director can be either a primary care or emergency physician with an EMS subspecialty (TAC 197.36.11). Even though medical directors are able to define EMS provider capabilities, a grey area exists as to whether non-emergency home care falls under this privilege.
There is no specification in the current Texas healthcare regulations for the community paramedic. Community paramedicine's goal of providing services outside a medical facility that a patient ‘might reasonably need to maintain good health’ (Texas Insurance Act 843.002.2) falls under the umbrella of home health. As care provided in the home, the regulations of home health care also apply. The community paramedic must have the knowledge of the home health care regulations and the differences in legal ramifications from the traditional emergency EMS environment. Otherwise, the community paramedicine initiative will be at best ineffective, at worst a litigation nightmare.
Texas home health Regulation
In contrast to the broad EMS regulations, the Texas home heath regulations present a formal outline of procedures that can and cannot be performed inside the home environment to include medication administration and education, monitoring of health condition, activities of daily living: bathing, feeding, positioning, transferring, and positioning, socialization activities, and wound care (22 TAC Chapter 224 §97.289). Home health service is provided to a person with an ‘acute health condition that is unstable or unpredictable’ (40 TexReg 381 §224.9b6) in order to stop the advancement of medical conditions to the point where hospitalisation or invasive procedures are required. Home health also promotes healing of the patient in their home, as opposed to patient care in a rehabilitation or long-term care facility. Nurses are responsible for developing care plans for patients and then delegating tasks to home health aides (22 TAC Chapter 224 97.404). Similar to the medical director delegation in EMS, the nurse determines what tasks the home health aides can and cannot perform on an individual provider and individual patient needs basis.
Legal ramifications
Litigation in EMS most frequently involves ambulance crashes or delay in response times. The patient plaintiff sues the individual paramedic and the EMS agency at which they are employed (Morgan et al, 1994).
Community paramedicine does not involve either ambulance transport or response times, but rather has a unique set of legal impacts. Recognising the legal effects of providing care in the patient's home is essential to a community paramedicine programme (Croke, 2006). The legal healthcare environment demands that community paramedics have the knowledge to deal with the legal issues of working in the home. Education for community paramedics should emphasise the differences in regulations between the EMS environment and the home environment.
The same responsibilities that a doctor or nurse has to the patient also apply to the community paramedic (Banja and Wolf, 1987; Croke, 2006). When not acting in an emergency capacity, the community paramedic transitions into a different healthcare provider role. The same regulations that apply to the home health professional also apply to the community paramedic, no matter what the defined community paramedic scope of practice states (Croke, 2006). Standards of care are generally open-ended orders that allow for the unpredictable nature of emergency situations. However, these open-ended blanket orders to treat and evaluate in the emergency environment cannot apply in the home environment (Banja and Wolf, 1987).
Negligence
Simple negligence is the failure to provide care that a ‘reasonably prudent’ person in the same situation, with the same training, would provide. Gross negligence is the intentional or wanton omission of that ‘reasonably prudent care’ (Croke, 2006).
The Texas Good Samaritan Act allows persons acting in a first responder capacity, medically trained or not, to render emergency medical aid in an emergency situation without fear of civil liability (Wiggins, 2003). Under the Texas Good Samaritan Act, paramedics are exempt from simple negligence but are liable for gross negligence in the emergency environment (Tex. Civil Practices and Remedies Code § 74.151.a). Out of the EMS emergency environment, the community paramedic is not except from negligence—simple or gross. The community paramedic is liable for actions that they would not be liable for if practicing on the ambulance. Malpractice litigation can be brought against the community paramedic in the home setting (Wiggins, 2003).
Consent
A patient has the right to make his or her own medical decisions. Consent does not include just the patient accepting or rejecting a medical procedure, but encompasses patient understanding of the diagnosis, proposed treatment, rationale for proposed treatment, expected results and risks of proposed treatment, and alternatives to proposed treatment (Banja and Wolf, 1987). Consent is a process of communication (Croke, 2006) between the patient and the healthcare provider. Failure to receive consent can result in claims of battery, kidnapping or negligence.
In the emergency environment, consent is many times implied given the nature of the medical emergency. The paramedic has the duty to act on behalf of a patient who is unable to consent due to their acute medical illness, but if able to, would consent to medical treatment (Aehlert, 2010).
The community paramedic cannot rely on implied consent when treating patients in the home. The community paramedic must be certain the patient understands and allows treatment to be given. Knowing if patient understands can present complications. patients in the home health setting are largely elderly or disabled, and therefore may not have the ability to make decisions for themselves (Tex HRC 102). Clear documentation of acceptance and barriers to consent is needed.
Nontransport
EMS providers transport 74% of all 911 emergency patients to the emergency room (Alpert et al, 2013). Of those patients transported, 34.5% have low acuity conditions that would allow for care alternative to ambulance transportation. Patients call the ambulance anticipating transport to the hospital (Brown et al, 2009). Paramedics are reluctant to not transport a patient, as they fear they may have missed something a medical person with higher training and diagnostic equipment may have seen (Comans et al, 2013). Society expects transportation, even if it is not warranted, and not transporting the patient could be seen as patient abandonment (Millin et al, 2011).
Community paramedicine is allowing patients to be treated without transportation to the emergency room.
Fraud
As part of its mission to reduce healthcare spending, the Affordable Care Act has increased efforts to combat healthcare fraud, especially in the Medicare system (Iglehart, 2010). In 2014, the national Office of the Inspector General recovered $19.5 million in recovered funds for criminal fraud cases and $187 million in civil fraud cases (Murrin, 2015) solely in the home health industry. Office of the Inspector General has especially targeted the home health industry, as it represents 30% of the fraud convictions (Murrin, 2015). Home health agencies commit fraud by billing false claims for services not provided, providing inappropriate or insufficient services, and overcharging for services that are provided (Golinkin, 2013). To combat the large amounts of home health fraud, Medicare has been scrutinising home health claims, especially claims by new providers (Benzio, 2010). Community paramedicine programmes will attract the eyes of Medicare fraud detectors, solely based on the home environment and the newness of the programme. Individual paramedics, along with the EMS agency, are responsible for understanding and preventing fraudulent activities.
Conclusion
Currently, paramedics are allowed to only work in emergency situations. Texas state regulations require an update to reflect the changing nature of EMS and the development of community paramedicine. Regulations should not define what the community paramedic is, but rather in what realm of healthcare community paramedicine belongs. Community paramedics require legal knowledge education into order to successfully implement a community paramedic programme.