| FIRE DISTRICT AFFAIRS [USPS 989-180]
[ISSN 1072-6314] An information and training bulletin published
monthly by the Association of Fire Districts of the State
of New York, Inc. |
Fire Districts May Not Charge
for Ambulance Service
The New York State Comptroller's Office recently issued an opinion
that subdivision 7 of Section 3008 of the Public Health Law does
not provide an alternate means for a fire district to establish emergency
or general ambulance services. Fire districts continue to be subject
to the prohibitior, found in subdivision 4 of Section 209-b of the
General Municipal Law, against the imposition of fees and charges
for either general or emergency ambulance service provided by an
emergency rescue and first aid squad.
The full ten of Opinion 9818 follows:
You ask whether Section 3008 of the Public Health Law, as amended by Chapter
510 of the Laws of 1997, provides the authority for a fire district to provide
advanced life support first responder service or general ambulance service
within the fire district or the town in which the fire district is located.
In addition, you ask whether, if Section 3008 does authorize the provision
of such services, the fire district may impose fees for those services, notwithstanding
the fact that Section 209-b(4) of the General Municipal Law prohibits the
imposition of fees and charges for emergency and general ambulance services
furnished by the emergency rescue and first aid squad of a fire district
fire department.
Initially, we note that Section 209-b of the General Municipal Law
authorizes fire districts to organize, within their fire departments,
emergency rescue and first aid squads composed of firefighters who
are members of the department (General Municipal Law Section 209-b[1][a].)
The squad may render services in cases of accidents, calamities or
other emergencies in corrnection with which the services of firefighters
may be required (id.). In addition, the board of fire commissioners
of a fire district which has a squad composed mainly of volunteer
firefighters, upon consent of the fire department and squad, and
after a public hearing, may authorize the squad to furnish general
ambulance service (General Municipal Law, Section 209-b[2][j]). The
board of commissioners may also contract for the provision of emergency
ambulance service and general ambulance service in certain circumstances
(General Municipal Law, Section 209-b[1][b], [2][c]; Town Law Section
176[22]; see also 1987 Opns St Comp No. 87-39, p61). Section 209-b(4)
otthe General Municipal Law expressly prohibits the imposition of
fees and charges for emergency or general ambulance service rendered
by an emergency rescue and first aid squad (1994 Opns St Camp No.
94-7, p 11; 1992 Opns St Camp No.92-45. p 114).
Article 30 of the Public Health Law also contains provisions relating
to the provision of emergency medical services in this State, the
express purpose of that article being:
| [T]o promote the public health, safety and
welfare by providing for certification of all advanced life
support first response services and ambulance services; the
creation of regional emergency medical services councils;
and a New York State emergency medical services council to
develop minimum training standards for created first responders,
emergency medical technicians and advanced emergency medical
technicians and minimun equipment and communication standards
for advanced life support first response services and ambulance
services (Public Health Law, Section 3000). |
For purposes of Anicle 30, "ambulance service" is defined
to include any:
| [I]ndividual, partnership, association, corporation,
municipality or any legal or public entity or subdivision
thereof engaged in providing emergency medical care and the
transportation of sick or injured persons by motor vehicle,
aircraft or other forms of transponation to, from, or between
general hospitals or other health care facilities (Public
Health Law, Section 3001[2]. |
"Advanced life support care" encompasses "definitive
acute medical care provided, under medical control, by advanced emergency
medical technicians within an advanced life suppon system" (Public
Health Law, Section 3001[11]). An organization that provides advanced
life support care, but does not transport patients, is defined as
an "advanced life support flrst response service" Public
Health Law. Section 3001[17]).
As part of the regulatory scheme established under Article 30, provision
is made for the registration or certification of all ambulance services
and advanced life support first response services (see Public Health
Law, Sections 3004[1]; 3005[1]).1 Prior to beginning
operations, an ambulance service or advanced life support first response
service must obtain the approval of the appropriate regional emergency
medical services council public Health Law, Section 3005[6]). Each
regional emergency medical services council, which includes representatives
of existing ambulance services, other members of the health care
community, and the general public, has the responsibility to make
a determination of public needs prior to granting its approval for
the establishment of an additional emergency medical service or ambulance
service (Public Health Law, Section 3003[2], [5]). Applications for
determination of public need by a regional emergency medical services
council are subject to the procedures set forth in Section 3008 of
the Public Health Law.
Chapter 510 of the Laws of 1997, effective September 3.1997, added
a new subdivision 7 to Section 3008 of the Public Health Law. The
new subdivision 7, which relates to advanced life support first responder
services and municipal ambulance services established by municipalities
and fire districts, reads as follows:
| (a) Notwithstanding any other provision of law and subject
to the provisions of this article, any municipality within
this state, or fire district acting on behalf of any such
municipality, and acting through its local legislative body,
is hereby authorized and empowered to adopt and amend local
laws, ordinances, or resolutions to establish and operate
advanced life support first responder services or municipal
ambulance services within the municipality, upon meeting
or exceeding all standards set by the department for appropriate
training, staffing and equipment, and upon filing with the
New York State emergency medical services council, a written
request for such authorization. Upon such filing, such municipal
advanced life support first responder service or municipal
ambulance service shall be deemed to have satisfied any and
all requirements for determination of public need for the
establishment of additional emergency medical services pursuant
to this article for a period of two years following the date
of such filing. Nothing in this article shall be deemed to
exclude the municipal advanced life support first responder
service or municipal ambulance service authorized to be established
and operated pursuant to this article from complying with
any other requiremement or provision of this article or any
other applicable provisions of law.
(b) In the case of an application for certification
pursuant to this subdivision, for a municipal advanced
life support or municipal ambulance service, to serve
the area within the municipality, where the proposed
service meets or exceeds the appropriate training. staffing
and equipment standards, there shall be a strong presumption
in favor of approving the application. |
Although the language of new subdivision 7(a) which authorizes municipalities
and fire districts acting on behalf of any such municipality" to "adopt
and amend local laws, ordinances and resolutions to establish and
operate advanced life support first responder services or municipal
ambulance services", could be interpreted as establishing an
alternative grant of authority for municipalities and fire districts
to authorize the provision of these types of services, it is our
opinion that the new subdivision has a more limited purpose.2
The sponsor's memorandum in support of the bill that was enacted
as Chapter 510 of the Laws of 1997 indicates that, under the current
procedures, a municipality is at a 'distinct disadvantage" in
applying for a certificate of need for the establishment of additional
advanced life support first responder services council that includes
representatives of the providers of existing services within the
region (see memorandum from Senator Guy Velella in support of Senate
Bill No. 1086-A0. In order to rectify this perceived disadvantage,
the sponsor states that those municipalities possessing the appropriate
equipment and staffing should be exempted from "the additional
scrutiny of the regional council" (id.). Based on the sponsor's
memorandum, it would appear that the intent of the new subdivision
was solely to provide alternative statutory requirements to the existing
certificate of need Process, thereby obviating, for a period of two
years, the requirement that municipalities and fire districts apply
to a regional emergency medical services council for a certificate
of need prior to operating an advanced life support first responder
service or municipal ambulance service.
In this regard, we also note that, while new subdivision 7(a) is
prefaced with the phrase "[n]othing in this article shall be
deemed to exclude a municipal advanced life support first responder
service or municipal ambulance service authorized to be established
and operated pursuant to this article from complying with any other
requirement or provision of this article or any other applicable
provisions of law." It is our view that this statement recognizes
the fact that a comprehetssive detailed statutory scheme governing
the procedures authotizing municipalities and fire districts to provide
emergency and general ambulance service by municipalities and fire
districts already exists (see, 1994 Opns St Comp No. 94-7, supra).
Consequently, it is also our view that hgd the new subdivision 7
been intended to provide an alternative to the current statutory
scheme for the provision of emergency and general ambulance services
by municipalities and fire districts, rather than merely establishing
a modified procedure for obtaining an approval necessary to provide
such services, the legislature would not have done so solely by implication.
Given the foregoing and the stated, limited purpose of Article 30
of the Public Health Law, it is our opinion that the new subdivision
7 of Section 3008 does not provide additional authority, beyond that
granted by Section 209-b of the General Municipal Law, for a fire
district to provide advance life support first responder services
or general ambulance services within the fire district or within
the town in which the fire district is located.
Even if we assume, for argument's sake, that the new subdivision
7 of Section 3008 of the Public Health Law could be construed as
an alternative source of authority for a tire district to provide
emergency or general ambulance service,3 that subdivision
is silent as to the imposition of fees and charges for advanced life
support first responder services or municipal ambulance services
(cf. General Municipal Law, Section 122-b[2], authorizing counties,
cities, towns, and villages to fix a schedule of fees or charges
to be paid by persons requesting the use of general ambulance services).
In the absence of State legislative authority for the imposition
of such fees or charges, it is necessary to examine the home rule
powers of local governments. In this regard, we note that fire districts
are not granted borne rule authority under Article 9 of the State
Constitution (see, NY Const., art IX, Section 3[d][2]; see also,
Municipal Home Rule Law, Section 2[8]). In addition, this Office
has expressed the view that the town within which the fire district
is located is without authority to adopt a local law on behalf of
the fire district (see, 1990 Opns St Comp No.90-39, p 88). Putther,
we have concluded that the provisions of Sections 122-b and 209-b
of the General Municipal Law, among other statutes, constitute a
comprehensive, detailed statutory scheme governing the procedures
for the provision of emergency and general ambulance service by emergency
rescue and first aid squads, intended, by the Legislature, to pre-empt
the adoption of local laws ita this area (see, Opns No. 94-7, supra).
It is, therefore, our opinion that a fire district is without authority
to impose a fee or charge for the advanced life suppon first responder
services or municipal ambutance services described in subdivision
7 of Section 3008 of the Public Health Law.
Accordingly, it is our opinion that the new subdivision 7 of Section
3008 of the Public Health Law does not provide an alternative means
for a fire district to establish emergency or general ambulance services
and that the prohibition, found in subdivision 4 of Section 209-b
of the General Municipal Law, against the imposition of fees and
charges for either general or emergency ambulance service provided
by an emergency rescue and first aid squad, continues to apply. Even
assumdng, for argument's sake, that subdivision 7 of Section 3008
of the Public Health Law were interpreted to provide alternative
authority for the establishment of these services, it is our view
that a fire district would be without authority to impose fees or
charges on the persons to whom services were rendered.
1Section 3004 of the Public Health Law reqnires
that volunteer ambulance services and municipal ambulance services
operating after September 1,1975, mast have a valid voluntary ambulance
service statement of registration or valid municipal ambulance service
statement of registration. The provisions of Section 3004 will expire
on January 1, 2000 (see Chapter 804 of the Laws of 1992, Sections
9, 25, and Chapter 731 of the Laws of 1993, Section 53). Pursuant
to section 3005[1] of the Public Health Law, an advanced life support
first response service must have a valid advanced life support first
responder service operating certificate: effective January 1, 1997,
no ambulance service may operate without a valid ambulance service
operating certificate or a statement of registration; and, effective
January 1, 2000, no ambulance service may be opperated unless it
possesses a valid ambulance service opetating certifcate.
2It should be noted that a fire district is an
independent corporate entity, constirnting a district corporation,
governed by a separate board of fire comnussioners (Town Law, Section
174; General Construction Law, Section 6[3]; see Miller v. Savage,
237 AD2d 215, 654 NYS2d 215; see also, 1981 Opns St Comp No.81-1,
p 1). Given that fire districts do not, in fact, act on behalf of
municipalities, it is unclear whether subdivision 7(a) was intended
to apply to fire districts established pursuant to Article 11 of
the Town Law. Nonetheless, for purposes of rendering this opinion,
we have assumed that subdivision 7(a), in referring to a "fire
district acting on behalf of any such municipality," actually
relates to actions that may be taken by fire district on its own
behalf
3In this regard, we note that the legislative
history of Chapter 510 of the Laws of 1997 does include a "Memorandum
of No Objection," dated August 1, 1997 from the Assodation of
Towns, which, in commenting on the duration of the exemption from
the determination of public need provided under subdivision 7 of
Section 3008 of the Public Health Law, states that the new subdivisionn
provides 'an additional or alternative source of authority for the
establishment of" advanced life support first responder service
or municipal ambulance service by a municipality fire district.