Point/Counterpoint

ED managers: Do not stop restocking

By Robert Suter, DO, MHA, FACEP
Regional Medical Director of the North Texas region
QuestCare Emergency Services
Dallas

(Editor’s note: In December 2000, the Department of Health and Human Services Office of Inspector General [OIG] issued an anti-kickback statute safe harbor to protect certain arrangements involving hospitals that restock drugs and medical supplies without charge for ambulance suppliers transporting emergency patients to the hospitals. [For details, see ED Management, September 2000.] In this issue, ED Management presents opposing viewpoints on this controversial issue.)

Unfortunately, by bringing attention to EMS, this action has triggered a great deal of hand wringing and concern over any and all interactions between hospitals and EMS. Most of this concern is unwarranted. If some consultants are believed, allowing EMS to drink a cup of coffee out of the employee lounge is an illegal kickback for referrals and will subject the ED director to major fines or hard time in the federal penitentiary. This approach is ridiculous. We should not apologize for or be afraid of advocating the interests of our EMS patients! Taking reasonable action to support EMS is not criminal.

Let’s remember that the anti-kickback laws were developed by Pete Stark (D-CA) to prevent inducements that would result in greater utilization of services and corresponding expense to the government. They do not prevent entities from engaging in activities that only influence selection of providers. If they did, all health care advertising would be illegal. Marketing activities that trigger increased utilization are illegal; marketing activities that do not are not.

When a family physician has a relationship with a cardiologist, the physician has a large degree of discretion about when and if a patient is referred for specialty evaluation or re-evaluation. This constitutes control over utilization. This control is effectively expanded given that such a referral could lead to increased testing as well. Therefore, this referral could be expected lead to further expense. Thus, inducements between the cardiologist and family physician easily could be seen as problematic or in some cases clearly illegal.

Not so with EMS. Our EMS crews are not cruising the streets and dragging patients into ambulances to take them to the hospital. EMS initiates service only when called by the patient. Patients control utilization, not EMS crews. Decisions to transport are nearly always determined by community protocol and not provider discretion. Once the patient is in the ambulance, it is inevitable that the patient will receive services.

While EMS providers arguably might, in some cases, have some selection of who will provide services, they have no ability to influence the utilization of services. This is a key point, since these circumstances create a clear and nearly insurmountable obstacle that prevents interactions with EMS providers from crossing over the line between selection and utilization.

One cannot refute the legal advice that refraining from anything that could be perceived as an inducement is the safest approach. The logical corollary to this is that the best way to avoid injury is to not get out of bed in the morning! Or, an alternative approach might be to close the ED. That also will guarantee compliance.

The fact is that many of the things that the cynical view as "inducements" clearly constitute efforts to improve EMS care or preparedness. When they do so, pursuing the best interests of our patients gives us an obligation to continue them. Educational programs improve performance. Ambulance restocking programs improve preparedness. A cup of coffee or a sandwich that fuels a tired medic for the next call does as well.

These are not criminal acts under the anti-kickback laws and regulations. They are actions in the community interest and support the hospitals’ mission to serve the community. Furthermore, many of them are similar to courtesies extended by most hospitals to medical staff, which have not been found problematic by the Health Care Financing Administration, in spite of much higher risks of being so.

Rejecting the personal and professional needs of our EMS colleagues, even in the interest of "compliance with the law," is detrimental to our patients. Respecting these needs improves relationships and enhances communication between EMS and hospital providers. Improved communication results in better transmittal of clinical information and better continuity, thereby improving patient care.

Concern about how our interactions with EMS relate to anti-kickback laws is appropriate. Fear is not. Doing the right thing is not illegal, nor do policy makers want it to be. The creation of "safe harbors" by the Office of Inspector General clearly shows that this is true.

Hospitals should not shy away from the obligation to support their EMS system and providers. Know the anti-kickback laws. Stay within them. Don’t stop appropriate activities. Don’t be afraid.

[This column is the opinion of the author and does not constitute legal advice or the position of any organization. Contact Suter at QuestCare, 101 E. Park Blvd., Suite 911, Plano, TX 75074. Telephone: (972) 881-8353. Fax: (972) 422-2208. E-mail: r.suter@questcare.com.]