Volunteer fire service leaders have worked hard to protect the legal status of LOSAP (length-of-service award program) and similar plans that provide nominal compensation to volunteers. They see these plans as important tools in the never-ending quest to recruit and retain active volunteers. But not every volunteer has access to such incentives, and incentive programs vary widely from state to state. Unfortunately, there appears to have been very little growth in the use of these programs in recent years.
According to a survey of state benefit laws conducted in 2003 by Penflex Inc., a firm that administers volunteer length-of-service award programs, only 30 states have established some sort of a retirement benefit. Fewer than 20% of all volunteers are covered, but Penflex reports that there have been few new programs in the past five years.
In its survey, Penflex found that 24 states have laws that allow state or local tax funds to be used to pay for volunteer retirement programs. In the remaining states that authorize the programs, but do not fund them with tax dollars, few volunteer departments have created any sort of retirement program for their volunteer members. Although these volunteer incentive programs appear to be retirement pensions, they are not because they differ in subtle, but legally important ways.
Initially, the plans were created as "defined-benefit" programs. Beneficiaries received a specific level of monthly payment, typically based on their age and number of years of active service. The age at which the pension can begin typically varies from 50 to 60 years old, although a few plans pay as soon as the volunteer earns the minimum years of credit. The formulas for determining whether a volunteer is active in a given year vary from the very simple (such as responding to a minimum number of calls) to very complex point systems that give credit for a variety of activities.
Defined-benefit plans are more attractive to the individual volunteer because they guarantee a certain benefit, but they can be very expensive to the sponsoring agency and costs may vary substantially from year to year. The fund is required to make the payments regardless of how well or poorly its investments have done. (As a note of full disclosure, I receive a monthly payment from a plan of this type operated by Montgomery County, MD.)
"Defined-contribution" plans have become more common in recent years. The plan sponsor puts a specific amount of money into a fund each year for every volunteer who earned credit for service. This money is allocated to each active volunteer's retirement account. The amount of the sponsor's obligation is based on the number of active volunteers. The funds are then distributed when the volunteer reaches "retirement" age according to a formula that is based on the size of the individual account.
Defined-contribution programs can be less attractive to individual volunteers since they assume the risk when the fund's investments do poorly. The size of pension that a volunteer receives depends on the value of the fund's investments, as well as upon his or her level of activity. The government agency or department that funds the program has no liability beyond the payments already made or promised to the fund.
A "flexible-contribution" plan is similar to the defined contribution in that funds are placed into each volunteer's account each year by the plan sponsor. However, instead of promising a specific contribution to each active volunteer each year, the sponsor guarantees that a specific amount of money will be contributed to the program, regardless of the number of volunteer participants. That money is then divided among the participants equally or by some formula. The sponsor has the greatest amount of control over its costs, but the volunteers potentially receive a different amount of contribution to their account each year. Like the defined-contribution program, the volunteer's pension is determined based on the size of the account at "retirement."
No one would disagree that a well-designed incentive program is a good idea for recruiting and retaining volunteer fire and EMS personnel. Ed Holohan, Penflex's president, says, "Clearly, the biggest obstacle isn't lack of clarity in the law â?? it is lack of funding." In these days when state and local governments are facing huge budget deficits, any proposal that costs any money, regardless of how useful it may be, won't be considered.
This is one area in which creative thinking could lead to new and valuable tools for recruiting and retaining volunteers. Relatively small amounts of government dollars, combined with contributions from departments and tax benefits, can create valuable incentives. And, they conceivably could be structured for purposes more immediate than retirement, such as buying a house, paying for education or covering medical costs that would make them far more attractive to potential new volunteers.
STEVE BLACKISTONE, a Firehouse® contributing editor, is a Maryland attorney who directs state and local liaison activities for an agency of the federal government. Prior to his current position, he served in a variety of posts on the staff of the U.S. House of Representatives, working both on the personal staffs of members of Congress and on congressional committees. Blackistone also is an active volunteer EMT/firefighter with the Bethesda-Chevy Chase Rescue Squad in Montgomery County, MD.
Patient "Parking" and the Law
Recently, a friend who works for a big-city fire department told me a horror story that happens all too often in some metropolitan areas. One day, when he was assigned to an ambulance, he transported a patient to a hospital only to find a long line of other ambulances waiting at the emergency department (ED) when he arrived. Even though the hospital was not on reroute ("diversionary status," in legal terms), he waited several hours before he could transfer his patient to a hospital gurney so that he could complete his reports and return to service.
This is just one example of patient "parking," the practice of hospital staff refusing to transfer a patient from the ambulance stretcher to a hospital gurney. The practice occurs especially in large metropolitan areas where there often are inadequate hospital ED resources and often a significant load of patients who have inadequate or no health insurance. Certainly, many hospitals suffer from chronic crowding, but this is not an appropriate solution. When this happens, patient health can be jeopardized and EMS units are not available to provide emergency services to the rest of the community.
The problem is an unintended consequence of the Emergency Medical Treatment and Labor Act (EMTALA), designed to ensure access to emergency care at any hospital participating in Medicare (which is to say, virtually all hospitals) that has an ED. Under the law, any person seeking medical treatment is guaranteed an appropriate screening exam and stabilization treatment. Initial triage is not sufficient to meet the medical screening exam requirement.
Congress enacted EMTALA in 1986 in response to the practice of "patient dumping." Hospital emergency rooms were turning away critically ill patients who were indigent or uninsured so that the hospital would not have to absorb the cost of treating them. Court decisions, regulations and interpretations by the Centers for Medicare and Medicaid Services (CMS) through the succeeding years have led to a complex legal framework that requires hospitals to assess and stabilize any patient who enters anywhere on hospital property and requests treatment. Indeed, a recent federal court decision extends the requirement to any patient in an ambulance being transported to a hospital as soon as the ambulance contacts the hospital and not when it enters hospital grounds, according to Lora Zimmer, a Wisconsin attorney who has written about the law. The only exception occurs when the hospital places itself in "diversionary status."
Today, patient dumping has been replaced by "patient parking" at some overloaded hospitals. After an initial triage, the hospital staff simply prevents the ambulance crew from transferring the patient from its stretcher to a hospital gurney. As my friend experienced, the patient is simply left on the stretcher (sometimes in the back of the unit) with the ambulance crew in attendance for hours at a time. Reportedly, some hospital staffs believe that the hospital isn't required to provide the care required under EMTALA until it takes responsibility for the patient from the ambulance crew.
Obviously, this raises concerns for EMS systems, whose resources are tied up at the hospital and not available to serve the rest of the community. The practice doesn't appear to have been addressed in any court decision interpreting this statute, though it certainly raises medical malpractice and civil liability questions. But, CMS has expressed the opinion that patient parking may be a violation of EMTALA. In a 2006 memo addressing this problem, CMS said that it, ". . . recognizes the enormous strain and crowding that many hospital emergency departments face every day. However, this practice is not a solution. 'Parking' patients in hospitals and refusing to release EMS equipment or personnel jeopardizes patient health and impacts the ability of the EMS personnel to provide emergency services to the rest of the community."
CMS provided new guidance in April 2007, stating again that parking patients and refusing to release EMS units violates EMTALA and does not delay a hospital's legal obligation to assess and stabilize the patient. The hospital's responsibility to the patient begins when the ambulance arrives on hospital property and not when the hospital "accepts" the patient from the ambulance's stretcher.
"On the other hand, this does not mean that a hospital will necessarily have violated EMTALA if it does not, in every instance, immediately assume from the EMS provider all responsibility for the individual, regardless of any other circumstances in the ED. For example, there may be situations when a hospital does not have the capacity or capability at the time of the individual's presentation to provide an immediate medical screening examination. . . (I)f the EMS provider brought an individual to the dedicated ED at a time when ED staff was occupied dealing with multiple major trauma cases, it could under those circumstances be reasonable for the hospital to ask the EMS provider to stay with the individual until such time as there were ED staff available to provide care to that individual."
We have all seen times when hospital staff cannot immediately take a patient and begin its assessment and treatment, but requiring units to wait for hours is not acceptable, and probably a violation of the law, to say nothing of negligent practice. Unfortunately, this ambiguous guidance language creates a great deal of legal uncertainty that ultimately will be resolved by the courts.
The solution to this problem will be complex, given the unrelenting economic and social pressures that many metropolitan health care systems face. (At the time of my friend's episode, every hospital in the city was on reroute.) We can't just say, "Stop it" and expect it to go away. But, EMS systems and individual ambulance crews must be documenting these occurrences and seeking to negotiate accommodations with hospitals on the basis of objective experiences.
â??Steve Blackistone
