Leaving Money on the Table, Part 1: Non-Emergency Medical Transportation (NEMT) Service And Brokers

This installment explains how the two major forms of wheelchair transportation were fragmented by oversight failures in the Johnson Administration. Not only did this fragmentation evolve into extraordinary levels of corruption, but the consolidation of these two types of programs was rarely, if ever, effected.

This moderate post is the first in what will likely take at least a dozen to fully cover the subject matter, and explain how attorneys cannot only earn small fortunes from wheelchair tipover cases, but effect justice in the process. As an expert witness having done roughly 700 cases, about 150 of them involved wheelchair tipovers (see https://wheelchairtipovers.com/ )  – mostly in non-emergency medical transportation (NEMT) service. Starting in 2005, most plaintiff’s attorneys managed to settle for maybe five percent of the value of these cases – despite me practically begging them to file against the party most responsible. Few did. And most of them few settled for the low-hanging fruit dangled in front of their clients before the attorneys had to do much work or find and invest in a qualified expert (of whom there are few).

These opportunities began in 2005, when the George W. Bush Administration passed some law permitting healthcare agencies to engage “brokers” to manage their chaotic, dangerous and mega-costly services from which most of the funding was stolen or wasted. The “brokers” simply broke them worse – and over time, exponentially worse, both in terms of cost and safety. Frankly, “brokers” should be called “breakers.” The major two oligopolies who gradually cornered the market on this opportunity are ignorant thieves, if not bona fide criminal enterprises. 

Origin of Specious

We had been transporting wheelchairs (poorly) for decades before the Americans with Disabilities Act (ADA) required their transportation, on most modes, in 1991. While many fixed route buses had wheelchair lifts on them, few were ridden by wheelchair users. These vehicles were relics from President Carter’s promulgation of “Full Accessibility” in 1976.

During his first week or so in office, in 1980, President Reagan quashed this legislation. But by then, all 50 states’ legislative bodies had echoed President Carter’s mandate of 14 years earlier, and few or none had the political courage to reverse it. (Many states’ legislators likely did not want to.) Also, Federal Transit Administration (FTA) rules mandate that every state receiving grant funds (which covered 80 percent of the cost of a bus) to maintain them for 12 years (so their purchase reflected an approach known as “life cycle costing”). (As a footnote, when “Full Accessibility” was mandated, the FTA was known as the Urban Mass Transportation Administration [UMTA]). As a result, when the ADA was promulgated in 1991, almost every transit bus in service had a wheelchair lift on it.

For reasons that history proved correct, I was always opposed to this requirement. I felt that equipping fixed route buses would dilute the efforts of paratransit services to be designed efficiently – or designed at all. I could not have been more correct – especially decades later when software began designing routes and schedules, and selecting stops for both transit, paratransit, NEMT and schoolbus services.  Then, compounding this robotic optimization of chaos, “brokers” took over.

As it were, long before the ADA required it, many communities already had paratransit systems -- door-to-door or curb-to-curb systems that transported both disabled and elderly individuals. (The ADA did not require the transportation of non-disabled individuals who were merely elderly.). In fact, from 1978 to 1980, I directed the U.S. Department of Transportation’s first nationwide examination of these systems, looking at 30 of them in 18 cities. Three of the 30 – most impressively Tulsa, OK – knew what they were doing. The other 27 were pretty much like those operated today – clueless, wasteful and often crooked. Alongside these programs that service every type of trip purpose, MediCare and Medicaid – promulgated in 1965 – also ha transportation components. While the services were nearly identical, there were never consolidated, or even crudely coordinated – further exaggerating the costs of this form of transportation.

In the early days, despite the primitive and problematic wheelchair securement equipment, most drivers did their best to secure wheelchairs – despite the equipment. This is partly because communities that provided paratransit service before 1991 did so because they wanted to – not because they were required by Federal law to do so. Some of the things I found on vehicles I examined for lawsuits in the 1990s would have been laughable had they not been so patently dangerous.

The term ‘paratransit’ was actually highjacked from a USDOT demonstration project, launched in 1969, known as the “Haddonfield Experiment.” The system was known as the Haddonfield Dial-A-Ride. It was a feeder service to the Lindenwold passenger rail line transporting commuters from South Jersey to Philadelphia. Otherwise – in the era when people actually got the phone – most paratransit systems in this country were known as “Dial-A-Rides.” Because of the programs that funded them, these paratransit services were fragmented into four groups, all operating under similar formats (and not all referred to as “Dial-A-Ride” services): 

1. Community dial-a-rides paid for mostly with local funds (and in some cases, state funds) – since the fares charged could not remotely cover the operating costs.
2. Non-emergency services funded by either MediCare or Medicaid (for which the qualified patients paid no fares)
3. A hodgepodge of social service agency funds (e.g., for developmentally-disabled adults), demand-responsive shuttles for attendees of adult day are centers, and other services targeted at specific client groups.
4. Special education pupil transportation (for special needs students) – paid for with state and local funds for schoolbus service.

As a Washington, D.C.-based consultant in 1976, I conducted a telephone survey of programs providing these types of services (excluding special education services). The Department of Housing and Urban Development (HUD) and the Department of Health, Education and Welfare (HEW) had just been consolidated into the Department of Health & Human Service (HHS) – the agency that still exists today.  I found more than 60 different, completely-uncoordinated programs containing funds for demand-responsive transportation service to various groups like those encompassed by the first three of four categories noted above.

Not surprisingly, almost every program now in HHS had the same name, was run by the same person who administered it when the programs had been in HEW or HUD, and almost all of them even had the same telephone numbers. (Faxes were just emerging in primitive form then, and most bureaucrats “got the phone.”)

But from 1964 through 1967, some critical errors were made by the Johnson Administration that laid the groundwork for the chaotic mess these services are today – including my estimate that two companies (the two major brokers) are likely stealing HALF A TRILLION DOLLARS A YEAR from our healthcare system – and have been doing so for nearly 20 years now (although the magnitude of funds stolen and wasted was not nearly this much at the start, and these particular companies did not comprise the near-monopoly they do now. The most significant reason for this continued, growing and uninterrupted corruption is the failure of plaintiff’s attorneys – mostly in wheelchair tip-over cases – to file again the parties most responsible for the incidents: The brokers.

The next short installment in this series will summarize the errors made by President Johnson that led to the fragmentation of these services, and which evolved into the opportunities for corruption and waste that occur today.  Each successive installment of these posts will increasingly explain why most plaintiff’s attorneys settle lawsuits involving wheelchair tip-overs (and other scenarios like boarding and alighting incidents) for a tiny fraction of their value. Stay tuned. Those attorneys willing to actually do some work, who can sort out the genuine experts from the cacophony of phonies, and who are willing to pay their real experts enough money to properly examine the details will usually settle for tens of millions. These attorneys should stay really-tuned.

Ned Einstein is the President of Transportation Alternatives, a passenger transportation and automotive consortium engaged in consulting and forensic accident investigation and analysis (more than 600 cases). Specializes in elderly, disabled, schoolchildren. Mr. Einstein has been qualified as an Expert Witness in accident analysis, testimony and mediation in vehicle and pedestrian accidents involving transit, paratransit, schoolbus, motorcoach, special education, non-emergency medical transportation, taxi, shuttle, child transport systems and services...

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