This past month, Transportation Alternatives President Ned Einstein became involved, as an expert witness, in his 62nd lawsuit involving a wheelchair tipover (see section of this website titled Common Accident and Incident Scenarios and scroll down to an overview titled, “Wheelchair and Passenger Securement.”) This particular case was more unusual in that the tipover took place a week or two before the incident of the lawsuit: Afraid of tipping over once again (the first time the passenger’s head was slammed into a passenger side window), the victim (or “plaintiff”) chose to transfer from her wheelchair to a fixed passenger seat. But despite several leg problems that compromised her balance (after all, she was using a wheelchair), the driver failed to assist her, she stood up for a second or two on her own, then promptly fell down and broke her leg. This transfer, of course, even without the passenger assistance required by the driver, involved far less risk than her wheelchair tipping over and possibly breaking her neck, hip, legs or other things.
This practice (this lawsuit involved a New Jersey provider of non-emergency medical service, NEMT, commonly known as “ambulette” service in many states such as New York), is unfortunately a rampant accident scenario whose root cause is almost always a route whose schedule is too tight (it takes time to properly secure a wheelchair and its passenger into it), mismatched securement elements that do not fit together (often because tie-down belts and other devices are “scavenged” from one vehicle to another rather than replaced), and because drivers fail to remove the securement hardware from the floor (and because of a glaring failure in the monitoring of driver conduct and performance. But it is also the result of the almost total lack of oversight: State and County healthcare departments rarely have a clue how to manage the largely unregulated drags in this industry, and rarely if ever check for equipment or monitor driver performance. And when they hire “brokers” to perform this function (along with many others, often not performed at all), the same lack of monitoring occurs.
Also unmonitored is the compliance with a number of Federal regulations – mostly involving violations of provisions of the Americans with Disabilities Act, the Federal Transit Administration (e.g., pre-trip inspection check-outs required to ensure proper and operable equipment are not conducted) and the principal “Business Associates” amendment to the Health Insurance Portability and Accountability Act (HIPAA), the latter whereby healthcare agencies are required to share medical and treatment records, and information about their patients’ disabilities with their “Business Associates” performing services that the Healthcare agencies are unable to. They rarely do. In this most recent case, I found SEVEN Federal regulatory violations. Five of them – ADA violations – effectively made the lawsuit a civil rights case.
Most interesting in these lawsuits is the failure of the plaintiffs’ attorneys to file suit against the healthcare agencies for HIPAA violations, confining their suit to only the operator. Similarly, not understanding the role of brokerages often involved as a “go-between” and responsible for the service provider’s healthcare agency requirements, attorneys rare file against them – when they often have most of the responsibility for safe service, much less far “deeper pockets” that the tiny and marginally-trained NEMT providers. Yet in many or most states, or parts of them, NEMT operators’ performance is governed, under contract, by NEMT brokers engaged by the healthcare agencies to select, train, control and monitor – and sometimes even schedule and dispatch the vehicles of – the NEMT providers under their contractual responsibilities to both the healthcare agencies by which they are engaged and with their NEMT contractors.. Yet many of these brokers do a poor job of exercising their contractual responsibilities. In one lawsuit I did of a nationwide broker in a Pennsylvania case, the broker did absolutely nothing but engage a ragtag handful of ignorant and indifferent service providers to which they failed to provide any training, and whose performance they never bothered to monitor. In this particular case, I actually have testimony [that I can use because it is not confidential, despite the lawsuit’s settlement] from the Executive Director who claimed that the company does not perform a single task of its contract! So little work does this company do for its $36,000,000 a month that it permits roughly $3,000,000 worth of fraudulent billings to be submitted to the City – and paid – money which the broker would retain as profit if it bothered to monitor the actual provision of service for which it received invoices, and from which it could have detected the fraud. It hard to know how much extra money is lost through circular or other indirect routing (known as “spaghetti routing” in the demand-responsive paratransit field of which NEMT service is a part). But the point is, this broker was making so much money not performing its contract that it couldn’t be bothered to examine the roughly $3,000,000 in fraudulent bills it would have retained, as its own profit, it is had found and disallowed them.
In numerous cases, even the ADA-required securement hardware is either missing (particularly the shoulder harnesses), or the securement tracks are spaced two closely together to properly secure the wheelchair. Effectively, while there are indeed certain responsible NEMT providers, the vast major appear to simply do what they want, spend as little money as possible, and passenger risks go unchecked.
Finally, an obscure part of this problem deals with the abstract reimbursement formula given these providers (and often worse to their brokers) which bears no relation to the way the providers’ costs are incurred —and which turns the service into a virtual crapshoot whenever a service provider is forced to “bid” on service: The rates are almost always set by the States, and the service providers know almost another about scheduling – much less efficient scheduling. As a result, they try to “break even” (many go out of business because they cannot) by speeding, eliminating a range of safety procedures, and committing other transgressions (like non-direct routing – known as “spaghetti routing” in the field – driving often ill and disabled clients around in circles so that they can transport enough passengers and accumulate enough passenger-miles per hour to meet their compensation rates.
That the vast majority of attorneys handling these cases are unaware of these factors is understandable – since many service providers are unaware of them. But in a lawsuit, the big money lies not in the direct damages, but in the enormity of regulatory violations, which is certain states often trigger the assessment of punitive damages. But even where these damages are not accessed by judges, a thorough presentation of these violations to the jury will often result in significantly inflated damage awards – and when savvy defense attorneys are faced with these realities, and knowledgeable expert witnesses – settlement offers increase significantly.