Arizona’s HB 2431: The risks and dangers for EMS
“Over-legislating providers committed to excellence is not the answer”
When I read legislation, I sometimes wonder if the people who wrote it actually understand what it says. All too often, it appears they don’t. Such seems to be the case with Arizona’s HB 2431.
In short, Arizona House Bill 2431 says:
- An EMT shall follow protocol or medical direction
- An EMT may not provide a presumptive diagnosis and then use that presumptive diagnosis as a reason to talk the patient out of ambulance transport
- An EMT may not counsel a patient to decline EMS transport ... unless it is allowed
- An EMT shall explain the risks and consequences of refusing EMS transport
- It is OK for an EMT to inform the patient about his or her right to refuse EMS transport, unless the EMT is doing it to get out of having to transport
If you read it quickly and don’t really think it through, it seems well-intentioned enough and completely reasonable. However, when you do a deep dive into the secondary and tertiary implications, the whole thing seems to become nothing more than an even thinner line for EMS providers to have to navigate or risk falling into a bottomless pit of risk and consequence.
Let’s break down the 5 parts of the bill.
1. Protocol and medical direction
First, “An emergency medical care technician shall comply with either emergency medical standards and protocols established by the regional council or the medical direction for the local jurisdiction when considering emergency transport, including the appropriate use of telecommunications.”
That is straight forward enough. EMS providers have to follow protocols and/or medical direction – within the confines of policy – in making transport decisions. It’s totally rational, makes perfect sense, and is pretty much the standard everywhere. After all, EMS providers are, to a significant degree, creatures of policy, protocol and procedure. A paramedic, for example, performs an assessment, gathers findings, forms opinions about what is likely going on with the patient based on those findings, and treats and makes transport decisions according to the protocols associated with those opinions. No problem, yet.
2. Presumptive medical diagnoses
Second, “An emergency medical care technician may not ... provide a patient with a presumptive medical diagnosis and use that medical diagnosis as the basis for counseling the patient to decline emergency medical services transportation.” Let’s break this one in half and deal with the second half first.
I have been pretty adamant since about 1988 that it is generally a bad idea to counsel a patient to decline EMS transport. I was trained that, if a patient wants to go, the patient goes. As an EMS defense lawyer, I have had more than a few clients in the hot seat because they tried to talk patients out of going to the hospital. Of course, I understand that not every patient needs to go to the hospital, but the law favors the notion that if they want to go, they go, and EMS is in the business of getting them there, so the second half does not seem too troubling.
However, to get to the second part, you have to get passed the first part: “an emergency medical care technician may not ... provide a patient with a presumptive medical diagnosis ... ” Do you see it? The beginning of the legislation requires providers to follow protocol. Great, because protocols essentially tell the provider what to do for particular illnesses and injuries; illnesses or injuries preliminarily – or presumptively – diagnosed by the provider based on the objective findings of their objective assessment. Do you see it now? The legislation seems to expressly prohibit providers from presumptively diagnosing, while directing them to follow protocols based on their ... wait for it ... presumptive diagnosis.
3. Counseling to decline transport
Next, the legislation says, “An emergency medical care technician may not ... counsel a patient to decline emergency medical services transportation, except as part of a specific alternate destination or treat-and-refer program that includes quality management and comprehensive medical direction oversight.”
This one is not too troubling on the surface; you can’t talk a patient out of transport to an emergency hospital unless the system has a more appropriate alternative destination for whatever is going on, and they can be transported to such an alternative destination or referred out according to protocol. However, before a provider can make such a determination, the provider must do a comprehensive, thorough, objective and systematic assessment, and reach a presumptive diagnosis that allows for the alternative destination protocol to be followed.
However, it seems by this legislation that providers are not allowed to make presumptive diagnoses and use them to counsel patients not to go to the hospital.
Imagine this scenario: A patient presents with symptoms of condition X and protocol allows providers to follow a treat-and-refer protocol, so they do. However, the patient requests transport to the emergency hospital instead. It seems that, either way, the law can view whatever the provider does as one violation or another.
4. Risks and consequences of refusing EMS transport
Now, the next part is really vexing: “An emergency medical care technician shall explain to a patient the risks and consequences to the patient's health of not being transported.” Perfect. You have to tell a patient what could happen if they don’t go to the hospital. We have been doing that for generations. Why add to it? Now, the same legislation that makes it [effectively] unlawful for EMS providers to form and communicate presumptive medical diagnoses, requires EMS providers to explain the potential risks and consequences of the condition it was unlawful for them to diagnose. This is where I would have inserted a head exploding emoji.
5. Informing the patient of the right to refuse EMS transport
Finally, “It is not a violation ... for an emergency medical care technician to inform a patient of the patient's right to accept or decline emergency medical services transportation, unless the emergency medical care technician does so in an effort to coerce the patient to decline emergency medical services.”
While the spirit and intent of this passage look like a soft out for providers stuck in the gray area, the only standard of measure has to be psychic ability; that is, the only way to find a violation is to presume to know what a provider was thinking at the time. Sure, a mountain of circumstantial evidence could make it pretty easy to see, but any EMT or paramedic who would offer up a mountain of circumstantial evidence that they convinced a patient to decline transport probably needs to be weeded out anyway. For everyone else, there would be no way to know, yet a provider could, nevertheless, end up in a very difficult and expensive legal fight to prove that negative.
Looking deeper, the legislation fails to take into account that many, many prehospital patients ask questions like: “What should I do?” or “What would you do?” To answer any such question, the provider would have to violate some part of the law. If the provider, in good faith, explains their assessment findings and runs through the possible risks and consequences, and then answers the “what would you do” question by saying something other than “go to the hospital,” they will be in violation of this law and subject to disciplinary action.
How to fix Arizona’s HB 2431
You might be thinking to yourself that I am reading too much into it. My wife tells me that all the time. Remember, I am a lawyer committed to protecting EMS providers as well as the integrity and quality of the industry. I understand that the law is all about language; in the law, the words selected and how they are used matters – because they directly affect real people doing real things. In the law, semantics is everything. This legislation, in my view, is sloppy and rife with unnecessary and avoidable danger for providers. This legislation perfectly illustrates that the road to hell is paved with good intentions.
If I were a legislator in Arizona, which I am not, I see this as a very easy problem to fix. Leave the first passage: “An emergency medical care technician shall comply with either emergency medical standards and protocols established by the regional council or the medical direction for the local jurisdiction when considering emergency transport, including the appropriate use of telecommunications,” and delete everything that follows. Then, with great care and precision, incorporate into the local protocols specific policy and terms, with sound justification and rationale, that would fall under and within the meaning of that first passage – let that be the guide.
I get it and I agree: too many providers spend too much energy talking patients out of transport and that needs to be addressed. EMS should only function at a high level and any provider not committed to being the best patient care provider possible should seek other employment. But over-legislating providers committed to excellence is not the answer.