August 8, 2018

The Association of Air Medical Services (AAMS) would like to respond to the National Association of State EMS Officials press release, dated Aug 3,  “NASEMSO Responds to Borders in the Sky.”

NASEMSO and AAMS, as well as a host of other organizations, support the Recognition of EMS Personnel Licensure Interstate CompAct (REPLICA).  That compact, according to its website, is described as follows:

As the EMS profession has evolved, so too have the capabilities of EMS personnel. This includes the need to respond across state lines in both day-to-day duties, in non-Governor level declared disaster situations and planned large scale events (staffing concerts and races or federal agencies dispatching personnel to support details). This has generated a renewed discussion on the importance of establishing a universal mechanism to assure a legal, practical, and consistent pathway for EMS personnel to have privileges to practice extended across state lines.

An interstate compact, REPLICA, has been developed as that mechanism. State borders should not serve as barriers to patient access, present burdensome processes for state-by-state licensure and change the level of protection afforded to the public. This Compact also includes an expedited process for members of the military and their spouses separating from active duty. REPLICA will host a Coordinated Database, allowing for states to access and rapidly share EMS personnel licensure information, and thus achieve a new level of accountability within the EMS profession.

How can NASEMSO claim in their Aug 3rd press release that there are no borders in the sky, yet recognize the need for and fully support the implementation of a multi-state compact to ensure that “State borders do not serve as barriers to patient access.”

AAMS agrees that “State EMS Offices have effectively regulated the medical aspects of the air ambulance industry to ensure that the public remains safe and the appropriate level of care is available during transportation when the patient’s condition requires care at another facility.”  We fully support the State EMS Offices role in regulating all aspects of medical care provided on board the aircraft.  However, in the same way that automobiles and airplanes are regulated differently in the United States, the mode of transport that medical care is provided on must be regulated differently.

State Certificate of Need (CON) laws have prevented the closest appropriate aircraft from transporting the patient to the closest appropriate facility, as was the case in North Carolina in 2008. When a little girl fell off of her horse in NC, the closest aircraft was called; it happened to be in South Carolina.  Due to a state law that prevented calling an out-of-state air medical service, the SC service was threatened with arrest if they landed at the closest hospital to the accident, which was in NC (they went ahead and landed anyway).  That law was thrown out in court thanks to the Airline Deregulation Act (ADA)  (Med-Trans Corporation v. Benton, 581 F. Supp. 2d 721 (E.D.N.C. 2008).

In that case, the ADA was used to defend against state laws restricting a patient’s access to the closest air medical care.  In North Dakota in 2017, the ADA was used to defend patients’ access to the closest appropriate aircraft when that state tried to require first responders to use a preferred dispatch list and only call aircraft with network agreements favorable to insurers.

Local governments have also attempted to establish borders in the sky.  In 2016, the U.S. Department of Transportation addressed San Bernardino County’s effort to require permits for air medical operators to provide service.  The Department noted that under the County’s regulations, an operator “can only provide its services within the service area described in the permit.”

While those rules may not have come from State EMS Offices, they have attempted to erect the very borders in the sky the ADA was designed to prevent.  While CONs, preferred network agreements, or exclusive operating zones may work well to regulate the ground ambulance market, they can mean the difference between life and death when someone in a severe medical condition awaits a scarce air medical resource that, especially in rural areas, may already be some distance away.

AAMS stands ready to work hand-in-hand with State EMS Officials, insurers, state and federal legislators, as well as federal transportation authorities to find a clear common-sense solution that provides for transparency and efficiency, does not inhibit air medical access, and most importantly ensures that patients-in-need receive safe, timely, and affordable air medical transport in those rare situations when it is needed.