Can an Arkansas ambulance service opt out of the state trauma system, and what if trauma rules leave the service's home territory uncovered?

Plain-English summary

Representative John Baine asked AG Dustin McDaniel a set of practical questions about the Arkansas Trauma System Act (A.C.A. §§ 20-13-801 to -821). The Act sets up a coordinated trauma care system run by the Arkansas Department of Health, with grants distributed to participating hospitals, ambulance providers, and emergency medical services.

The four questions: can an ambulance service "opt out" of the trauma system; and can trauma rules force a service to leave its primary coverage area for a patient transport that would leave the local territory uncovered, even when local contracts, franchise agreements, or local government expectations require otherwise (including for city fire-based ambulance services where the trip could also reduce fire protection coverage).

The AG's answers, summarized:

1. Opt-out: yes, in the sense that participation is voluntary. The Act allocates funds "to emergency medical services providers, hospitals, or other health care providers that would like to participate." No ambulance service is required to apply for or accept a grant.

2. Transport rules can require leaving primary coverage: yes, but with caveats. Once a service participates, the Trauma System's rules govern. The AG had addressed the same tension in Opinion 2011-053: requiring a "backfill" plan as a condition of grant funding was a regulatory means of dealing with the conflict between local coverage obligations and trauma transport requirements. The backfill plan is supposed to ensure cross-jurisdictional coverage when an ambulance has to leave its territory.

3. City fire-based ambulance services are no exception. Even when leaving the territory could reduce fire protection within the jurisdiction, the trauma rules still apply. The remedy is the backfill agreement, not refusal to transport.

The AG closed with a familiar refrain: situations where the backfill arrangements don't actually work in a specific locality are best addressed to local counsel, or possibly by legislative action.

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Is participation in the Arkansas Trauma System mandatory?
At the time of this opinion, no. The Act framed Trauma System grants as available "to emergency medical services providers, hospitals, or other health care providers that would like to participate." Services that did not apply for grants were not bound by the System.

What is a "backfill" plan?
A backfill plan is a written cross-jurisdictional coverage arrangement: when an ambulance service leaves its primary coverage area to transport a trauma patient to a higher-level center, a neighboring service agrees to cover the home territory. Backfill plans were required as a condition of Trauma System grant funding.

What if the backfill plan doesn't actually cover the gap in practice?
The AG was sympathetic but legally firm: the existence of the requirement did not give an ambulance service a basis for refusing transport. The practical limits of backfill in a particular county were a matter for local counsel and, if the legislature thought the framework was broken, for legislative action.

Does the Arkansas Trauma Call Center decide where patients go?
Under A.C.A. § 20-13-817(a), the Arkansas Department of Health established the Arkansas Trauma Call Center to direct patient transport to the most appropriate hospital. The AG flagged this center as the dispatcher of the transport decisions in question.

Could a city fire-based ambulance argue that reduced fire protection in its district overrides the trauma transport?
At the time of this opinion, no. The AG treated the trauma rules and the local fire-protection obligation as both still binding, with the backfill plan as the legal mechanism for reconciling them.

Background and statutory framework

The Trauma System Act, codified at A.C.A. §§ 20-13-801 to -821, was enacted by Act 559 of 1993 and amended by Act 393 of 2009 to provide funding through the Public Health Fund. The Act distinguishes between:

• Start-up grants (training, readiness setup),
• Sustaining grants (ongoing training and readiness, A.C.A. § 20-13-809), and
• The call center mechanism (A.C.A. § 20-13-817).

Participation in the System is structured as voluntary at the funding-acceptance level. Once enrolled, an EMS provider must follow trauma triage guidelines that include calling the Arkansas Trauma Call Center and transporting to the most appropriate hospital, as set out in the Arkansas State Board of Health Section of Emergency Medical Services Rules and Regulations (Section XV).

The backfill agreement requirement was promulgated by the Department of Health as a condition of grant funds, consistent with the Department's authority under A.C.A. § 20-13-804(a) to develop the trauma care system.

Citations

• A.C.A. § 20-13-801 through § 20-13-821 (Trauma System Act)
• A.C.A. § 20-13-804 (Supp. 2013) (allocation of funds; grants to participants)
• A.C.A. § 20-13-804(a) (Supp. 2013) (development authority for trauma system)
• A.C.A. § 20-13-809 (Supp. 2013) (start-up and sustaining grants)
• A.C.A. § 20-13-817(a) (Supp. 2013) (Arkansas Trauma Call Center)
• Op. Att'y Gen. 2011-053 (prior backfill agreement analysis, reproduced in the opinion)

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

STATE OF ARKANSAS

Tue ATTORNEY GENERAL
DustTIn McDANIEL

Opinion No. 2013-141

February 18, 2014

The Honorable John Baine

State Representative

Post Office Box 10056

El] Dorado, Arkansas 71730-0022

Dear Representative Baine:

This is in response to your request for my opinion on the following questions
concerning the Arkansas Trauma System

1. Currently hospitals are allowed to “opt out” of pursuing
   designation as a trauma center. Can an ambulance service decide
   to “opt out” of the trauma system?

2. Can the trauma system promulgate rules requiring an ambulance
   service to leave its primary coverage to transport a trauma patient
   to a higher level trauma center that would result in the ambulance
   service not providing adequate coverage as established by local
   contracts or franchise agreements?

3. Can the trauma system promulgate rules requiring an ambulance
   service to leave its primary coverage to transport a trauma patient
   to a higher level trauma center that would result in the ambulance
   service not providing adequate coverage as established by local
   governments?

' The Arkansas Trauma System (hereinafter “System”) was developed pursuant to the Trauma System Act
(A.C.A. § 20-13-801—821 (Repl. 2005 and Supp. 2013)). The System was implemented by the Arkansas
Department of Health pursuant to A.C.A. § 20-13-804, which was originally enacted under Act 559 of
1993, and then subsequently amended by 393 of 2009 to provide for funding through the Public Health
Fund. /d. at (b) (Supp. 2013).

323 CENTER STREET, SUITE 200 * LITTLE Rock, ARKANSAS 72201
TELEPHONE (501) 682-2007 * Fax (501) 682-8084
INTERNET WEBSITE ¢ http://www.ag.state.ar.us/

The Honorable John Baine
State Representative
Opinion No. 2013-141
Page 2

4. Can the trauma system promulgate rules requiring a city fire-
   based ambulance service to leave its primary coverage to
   transport a trauma patient to a higher level trauma center that
   would result in the ambulance service not providing adequate
   coverage as established by the local government and which
   would result in a reduction in the level of fire protection within
   the jurisdiction?

RESPONSE

Although I am somewhat uncertain what you mean precisely by “opt out,” no
ambulance service is required to apply for a grant under the Trauma System Act.
The answer to your first question is therefore “yes,” in the sense that an ambulance
service may decide not to participate in any allocation of funds under the Act. For
the reasons explained below, it is my opinion that the answer to your remaining
questions is “yes.”

Question I - Currently hospitals are allowed to “opt out” of pursuing
designation as a trauma center. Can an ambulance service decide to “opt out”
of the trauma system?

The Trauma System Act” provides for the allocation of funds by the Arkansas
Department of Health in the form of grants to “emergency medical services
providers, hospitals, or other health care providers that would like to participate in
the program.”> Funding is in the form of “start-up grants” and “sustaining
grants”:

An emergency medical system care provider or ambulance provider
may be eligible for:

(1) The emergency medical system care provider education start-up
grants that are used to support trauma education and trauma
readiness; or

? Note 1, supra.

3 A.C.A. § 20-13-804(a) (Supp. 2013) (emphasis added).

The Honorable John Baine
State Representative
Opinion No. 2013-141
Page 3

(2) The emergency medical system care provider sustaining grants
that are used to support ongoing trauma education and trauma
readiness.“

I have found no other language in the Act to counter the clear implication of the
above provisions that participation in the System is voluntary and an ambulance
service may decide to participate by applying for a grant. Accordingly, the answer
to your first question is “yes,” in the sense that an ambulance service may decide
not to participate in any allocation of funds under the Act.

Question 2 - Can the trauma system promulgate rules requiring an ambulance
service to leave its primary coverage to transport a trauma patient to a higher
level trauma center that would result in the ambulance service not providing
adequate coverage as established by local contracts or franchise agreements?

Question 3 - Can the trauma system promulgate rules requiring an ambulance
service to leave its primary coverage to transport a trauma patient to a higher
level trauma center that would result in the ambulance service not providing
adequate coverage as established by local governments?

Question 4 - Can the trauma system promulgate rules requiring a city fire-based
ambulance service to leave its primary coverage to transport a trauma patient to
a higher level trauma center that would result in the ambulance service not
providing adequate coverage as established by the local government and which
would result in a reduction in the level of fire protection within the jurisdiction?

Each of these questions raises an issue that I have previously addressed concerning
so-called “backfill” arrangements that involve the cross-jurisdictional provision of

• A.C.A. § 20-13-809 (Supp. 2013).

Because your questions deal with the transportation of trauma patients, I should note that under proposed
emergency medical services rules that will soon be effective, all licensed ambulance services will be
required to follow new trauma triage guidelines that include calling the Arkansas Trauma Call Center
(ATCC) and transporting to the most appropriate hospital. See proposed Arkansas State Board of Health
Section of Emergency Medical Services Rules and Regulations for Emergency Medical Services at Section
XV (available at http://www.healthy.arkansas.gov (under Rules and Regulations (“Emergency Medical
Services”). Once implemented, the rules will be available at http://www.healthy.arkansas.gov/aboutADH/
RulesRegs/Ems.pdf.

The ATCC is the “call center” that was established by the Arkansas Department of Health pursuant to
A.C.A. § 20-13-817(a) (Supp. 2013) (part of the Trauma System Act) for the purpose of directing patient
transport to the most appropriate hospital. Jd. at (b).

The Honorable John Baine
State Representative
Opinion No. 2013-141
Page 4

emergency services.° As I noted in Attorney General Opinion No. 2011-053, “...
requiring a backfill plan as a condition of receiving Trauma System grant funds
was a regulatory means of addressing the concern ... regarding emergency
medical service providers’ existing service obligations.”’ The requirement of
“backfill agreements” is thus intended to avoid the situation identified in your
questions, in which an ambulance service is unable to meet both local coverage
requirements and the Trauma System’s transportation requirements.

Considered in light of the above, I take your questions to mean that backfill
agreements are not adequate in all circumstances to avoid this situation. I assume
that is correct, although I have no information regarding the existence or
frequency of such occurrences. In any event, however, it must be concluded that
the answer to your questions in this regard is “yes.” The fact that this situation
may arise is not a basis for avoiding the Trauma System’s rules regarding patient
transport, in my opinion. As I stated in Opinion 2011-053, these are “practical
implications of participation in the Trauma System.” It may well be, as I also
previously stated, that this matter calls for legislative action. But in the meantime,
I can only reiterate that the situation is appropriately addressed to the ambulance
service’s local counsel, who will be in a position to fully assess these practical
concerns.

Deputy Attorney General Elisabeth A. Walker prepared the foregoing opinion,
which I hereby approve.

Sincerely,

Attorney General

DM:EAW/cyh

Enclosure

° See “Emergency Medical Backfill Agreement” (available at http:/Avww.healthy.arkansas.gov/programs
Services/hsLicensingRegulation/EmsandTraumaSystems/FormsManualsMemos/Pages/default.aspx).

7 A copy of Op. Att’y Gen. 2011-053 is enclosed for your convenience.

STATE OF ARKANSAS
THE ATTORNEY GENERAL
Dustin McDANIEL

Opinion No. 2011-053

June 21, 2011

The Honorable Tommy Thompson
State Representative

15 Ashley Drive

Morrilton, Arkansas 72110-2287

Dear Representative Thompson:

You have requested my opinion on several questions concerning the Trauma
System Act, which was originally enacted under Act 559 of 1993, and most
recently amended by Act 393 of 2009.! As background for your questions, you
State:

The Trauma System will require the transport of trauma patients to a
designated center, often times outside of the service arca of that
ambulance service. The reality of this will, for many rural services
with few resources, mean leaving the area without service for an
extended time. While many services have a “backfield”
arrangement with a neighboring service, that service may not be able
to respond immediatcly.

In the above situation, an ambulance service, by leaving their
contracted area without coverage, would be in violation of their
franchise agreement, or in violation of the Trauma System rules if
they did not transport as the Trauma Call Center determined.

’ The Trauma System Act, as amended, is codified at A.C.A. §§ 20-13-801 through -821 (Repl. 2005 and
Supp. 2009).

323 CENTER STREET, SuTE 200 * Litre Rock, ARKANSAS 72201
TELEPHONE (501) 682-2007 » Fax (501) 682-8084
INTERNET WEBSITE * http://www.ag. state, ar.us/

The Honorable Tommy Thompson
State Representative

Opinion No, 2011-053

Page 2

Against this backdrop, you ask:

1, What are the legal ramifications to a private service versus a
municipally owned/operated service?

2. What are the legal ramifications to service that might be owned
   and operated by a city, and subsidized by the county versus a
   private service or a municipally owned service?

3. Are any liability issues facing any type of service?

4. Would the Trauma System be responsible for additional
   ambulances throughout the State for the backfield cover needs?

5. If the answer to #4 is yes, would this not be a violation of the
   current franchise system for contracting for ambulance service?

6. Ifthe answer to #4 is no, who is responsible?

RESPONSE

I am unable to opine in response to your first three questions due to their
inherently factual nature. Regardless of their context, liability-related issucs are
generally factually intensive and require knowledge of the specific surrounding
circumstances. I lack the resources and the authority to develop the myriad factual
considerations that bear on such issues,

In addition, these particular questions concerning the possible legal consequences
of participating in the Trauma System require guesswork and speculation, and may
turn in part on contractual terms along with other facts pertinent to the ambulance
service at issue. Questions of this nature are simply outside the scope of an
Attorney General opinion. They must be answered instead on the local level,
ideally with the assistance of local counsel. Local counsel will be situated to
assess what appear to be the practical implications of participation in the Trauma
System, and to advise regarding a course of action in light of that assessment.”

• The Trauma System Act provides for the allocation of funds by the Arkansas Department of Health in the
  form of grants to ambulance providers and other health care providers who choose to participate in the
  trauma system. A,C.A, §§ 20-13-804 and -809 (Supp. 2009). As a condition of receiving grant funds, an

The Honorable Tommy Thompson
State Representative

Opinion No, 2011-053

Page 3

Question 4 - Would the Trauma System be responsible for additional
ambulances throughout the State for the backfield cover needs?

I believe the answer to this question is “no” under the Trauma System Act as
currently structured. According to my understanding, requiring a backfill plan as a
condition of receiving Trauma System grant funds was a regulatory means of
addressing the concern you have identified regarding emergency medical service
providers’ existing service obligations. In my opinion, the Arkansas Department
of Health has reasonably imposed this requirement pursuant to its clear authority
to develop and implement the trauma care system.’ Presumably, the Department
recognized that certain grant recipients may be faced with the situation you have
described, and that it was necessary to address that situation in order to ensure the
efficacy of the Trauma System which depends in the first instance upon the
participation of as many emergency medical service providers as possible.
However, given that participation in the Trauma System is not mandatory,‘ I see
no basis for concluding that the System bears responsibility for additional
ambulance service in that situation.

Question 5 - If the answer to #4 is yes, would this not be a violation of the
current franchise system for contracting for ambulance service?

A response to this question is unnecessary in light of my negative response to
Question 4.

Question 6 - If the answer to #4 is no, who is responsible?

There is no controlling state law on this issue. For this reason, I am unable to
opine in response to this question. It may well be that this is a matter that calls for
legislative action. But I cannot, in the absence of any controlling state law
provision, undertake to clarify the matter.

applicant must, among other things, use the statewide call center and establish at least one “backfill” plan.
See “Purpose & Scope of Work Emergency Medical Services Grant” (available at
http://www. healthy arkansas.gov). I assume you are referring to this backfill plan when you speak of a
“backfield arrangement.”

3 See A.C.A. § 20-13-804(a) (Supp. 2009).

• Seen. 2, supra.

The Honorable Tommy Thompson
State Representative

Opinion No, 2011-053

Page 4

I regret that Iam unable to offer assistance in this respect. If there are questions of
state law interpretation, I will of course address the matter and provide a timely
response.

Deputy Attorney General Elisabeth A. Walker prepared the foregoing opinion,
which I hereby approve.

Sincerely, /)

ME
USTIN McDANIEL
Attorney General

DM:EAW/cyh