Opinion 2010 - 4


This opinion represents the views of the Office of the State Comptroller at the time it was rendered. The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

 

AMBULANCE SERVICE - - Contracts (by fire district for “back up” services with private ambulance company) -- Fees (imposition of by fire districts for “back up” services provided under contract with private ambulance company) -- Fire Districts (contracts for “back up” services with private ambulance company)

FEES -- Imposition of (by fire districts for “back up” services provided under contract with private ambulance company)

FIRE DISTRICTS -- Ambulance Service (“back up” services provided under contract with private ambulance company); (imposition of fees for “back up” services provided under contract with private ambulance company) – Powers and Duties (contract for “back up” services provided by private ambulance company); (imposition of fees for “back up” services provided under contract with private ambulance company); (by fire districts for “back up” services provided under contract with private ambulance company)

GENERAL MUNICIPAL LAW §§ 122-b (5), 209-b (3-a) (a): A fire district that has in its fire department an emergency first aid and rescue squad comprised mainly of volunteer firefighters may authorize the squad to contract with “ambulance services,” as defined in Public Health Law § 3001 (2) and (3), to provide services when the squad is unavailable. In addition, a fire district may contract with an appropriate private ambulance company for prehospital treatment if: (1) the fire district, as a part of a fire protection contract, provides general and/or emergency ambulance service pursuant to General Municipal Law § 209-b and article 30 of the Public Health Law, (2) a town or village has not designated itself as the primary provider of, or otherwise contracted for, an emergency ambulance, a general ambulance service or a combination of such services acting individually or jointly, and (3) the services are limited to the furnishing of supplemental personnel, equipment or service to cover instances or periods of time when the fire district's service may not be readily available. In neither situation, however, may a fee be imposed upon the person served for the services provided under the contract with the private ambulance company.

You ask whether a fire district may enter into a contract with an incorporated private voluntary ambulance service under which the ambulance service would provide emergency medical services to the fire district. The ambulance service would also bill and collect fees that would be charged to the users of the services, and retain the fees for its own use and benefit.

Initially, we note that it is a fundamental principle that fire districts only have those powers expressly granted by statute or necessarily implied therefrom (Town Law § 176 [21]; see e.g. 2008 Ops St Comp No. 2008-3; 2003 Ops St Comp No. 2003-4, at 10; cf. Wells v Town of Salina, 119 NY 280). There are several statutes that authorize fire districts to contract to receive emergency medical services. A fire district whose own fire department has not been authorized to render emergency ambulance service 1may contract to obtain that service from another city, town, village or fire district that has in its fire department an emergency rescue and first aid squad duly authorized to render emergency ambulance service (General Municipal Law § 209-b [1] [b]). In addition, a fire district, as part of a fire protection contract with a city, village or fire district, or an incorporated fire company having its headquarters outside the district, may contract for emergency ambulance service (Town Law § 176 [22]). If the fire department or fire company furnishing fire protection under the contract does not maintain and operate an ambulance, the fire district may separately contract for emergency ambulance service with a city, village, fire district or fire company under certain circumstances (id.).

Prior to 2003, fire districts were not authorized to contract to receive emergency medical services from an entity other than a fire department or fire company, such as from a private ambulance company (1998 Ops St Comp No. 98-21, at 51). Chapter 378 of the Laws of 2003, however, added subdivision 3-a to General Municipal Law § 209-b and subdivision 5 to General Municipal Law § 122-b, to provide limited grants of authority for fire districts to contract with, among other entities, private “commercial” ambulance companies to receive “back-up” services (see New York State Assembly Mem in Support of Legislation, Budget Report on Bills, Letter to Counsel to the Governor, United New York Ambulance Network, August 15, 2003, Bill Jacket, L 2003, ch 378, at 3, 4 and 10, respectively).

Under General Municipal Law § 209-b (3-a) (a), a fire district that has in its fire department an emergency first aid and rescue squad comprised mainly of volunteer firefighters may authorize the squad to contract with “ambulance services,” as defined in Public Health Law § 3001 (2) and (3), 2 to provide services when the squad is unavailable. 3 Subdivision 5 of General Municipal Law § 122-b provides as follows:

Fire districts, which, as part of a fire protection contract, may provide general ambulance and/or emergency ambulance service pursuant to section two hundred nine-b of this chapter and article thirty of the public health law where a town or village has not designated itself as the primary provider of or otherwise contracted for an emergency ambulance, a general ambulance service, or a combination of such service acting individually or jointly, may contract with one or more individuals, municipal corporations, or other organizations having sufficient trained personnel, vehicles or combination of personnel and vehicles suitable to provide prehospital emergency treatment, for the furnishing of supplemental personnel, equipment or service to cover instances or periods of time when its service may not be readily available.

 

Thus, pursuant to General Municipal Law § 122-b (5), fire districts may contract with, among others, appropriate private ambulance companies for prehospital treatment, but only if: (1) the fire district, as a part of a fire protection contract, provides general and/or emergency ambulance service pursuant to General Municipal Law § 209-b and article 30 of the Public Health Law, 4 (2) a town or village has not designated itself as the primary provider of, or otherwise contracted for, an emergency ambulance, a general ambulance service or a combination of such services acting individually or jointly, and (3) the services are limited to the furnishing of “supplemental personnel, equipment or service to cover instances or periods of time when its [the fire district's] service may not be readily available.”

Even if the fire district here meets the requirements of General Municipal Law §§ 209-b (3-a) or 122-b (5) for contracting with a private ambulance company for “back-up” emergency medical services, however, there is no authority in either statute for the imposition of fees upon users of the fire district's contracted services, whether the fees are billed and collected by the private ambulance company or by the fire district. General Municipal Law § 122-b (1) authorizes a county, town, village or city, but not a fire district, to provide an emergency medical service, general ambulance service or a combination of such services for the purpose of providing prehospital emergency treatment or transporting sick or injured person found within the boundaries “of the municipality” to a place for treatment. General Municipal Law § 122-b (2) authorizes “[s]uch municipality” to fix a schedule of fees and charges to be paid by persons requesting use of the services, and provide for the collection of the fees and charges or formulate rules and regulations for the collection of the fees and charges by organizations providing the service under contract. It is evident that the term “such municipality” as used in General Municipal Law § 122-b (2) in the grant of authority for the imposition of fees is intended to refer back to the cities, towns, villages and counties authorized under General Municipal Law § 122-b (1) to provide emergency medical and general ambulance services (see also General Municipal Law § 2 [defining the term “municipal corporation,” as used in the General Municipal Law, to include only a county, town, city and village]).

In contrast to General Municipal Law § 122-b (2), there is no indication in General Municipal Law § 122-b (5), General Municipal Law § 209-b (3-a), or the legislative history of chapter 378 of the Laws of 2003, to suggest that fees may be imposed upon users of the fire district services provided under contracts pursuant to those provisions. 5 In fact, General Municipal Law § 209-b (4) expressly states that emergency and general ambulance services authorized pursuant to section 209-b must be furnished without cost to the person served. 6

Accordingly, a fire district that has in its fire department an emergency first aid and rescue squad comprised mainly of volunteer firefighters may authorize the squad to contract with “ambulance services,” as defined in Public Health Law § 3001 (2) and (3), to provide services when the squad is unavailable. In addition, a fire district may contract with an appropriate private ambulance company for prehospital treatment if: (1) the fire district, as a part of a fire protection contract, may provide general and/or emergency ambulance service pursuant to General Municipal Law § 209-b and article 30 of the Public Health Law, (2) a town or village has not designated itself as the primary provider of, or otherwise contracted for, an emergency ambulance, a general ambulance service or a combination of such services acting individually or jointly, and (3) the services are limited to the furnishing of supplemental personnel, equipment or service to cover instances or periods of time when the fire district's service may not be readily available. In neither situation, however, may a fee be imposed upon the person served for the services provided under the contract with the private ambulance company.

 

November 22, 2010

Ronald P. Bennett, Esq., Town Attorney
Town of Holland

 

1General Municipal Law § 209-b authorizes the board of fire commissioners of a fire district to organize, within the fire district fire department, emergency rescue and first aid squads composed of firefighters who are members of the department (General Municipal Law §209-b[1][a]). The squad may render services in cases of accidents, calamities or other emergencies in connection with which the services of firefighters may be required (id.).

2Public Health Law § 3001 (2) defines “[a]mbulance service" to mean “an individual, 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 transportation to, from, or between general hospitals or other health care facilities.” Public Health Law § 3001 (3) defines “[v]oluntary ambulance service” to mean “an ambulance service (i) operating not for pecuniary profit or financial gain, and (ii) no part of the assets or income of which is distributable to, or enures to the benefit of, its members, directors or officers except to the extent permitted under this article.”

3 General Municipal Law § 209-b (3-a) (a) also authorizes “mutual aid agreements,” as defined in Public Health Law § 3001 (20).

4 General Municipal Law § 122-b (5) literally states, as one of the criteria that must be met in order for a fire district to contract for supplemental service, that the fire district, “as part of a fire protection contract, may provide ” general or emergency ambulance service (emphasis added). This provision could be read to mean that the fire district merely must have the authority to contract to provide such services, and not that the fire district, in fact, has contracted to provide the ambulance services. It is evident, however, that, when General Municipal Law § 122-b (5) is read as a whole, the purpose of the amendment is to give a fire district that has actually agreed to provide ambulance services as part of a fire protection contract the authority to contract for supplemental services for situations when the fire district's own services to be provided under the fire protection contract are not “readily available” (see also State of New York Department of State, Approval Mem, July 14, 2003, Bill Jacket, L 2003, ch 378, at 5).

5 It should also be noted that the fees imposed pursuant to General Municipal Law § 122-b (2) are municipal charges for a municipal function, and constitute monies of the town, village, city or county, as the case may be (1998 Ops St Comp No. 98-9, at 22). Although section 122-b (2) authorizes the municipality to provide, in rules and regulations, for the collection of the fees and charges by the contracting service provider, the service provider should remit the monies collected to the municipality (2005 Ops St Comp No. 2005-1, at 1, footnote 1). Therefore, even if the authorization for the imposition of fees in General Municipal Law § 122-b (2) were to apply here, the fees would not be retained by the ambulance company.

6 General Municipal Law § 209-b (4) further provides, as noted in the letter of inquiry, that the acceptance by any firefighter of any personal remuneration or gratuity, directly or indirectly, from a person served shall be a ground for expulsion or suspension as a member of the fire department or fire company. The letter of inquiry also notes that the not-for-profit corporation in question would be formed by members of the fire district fire department, and that the services would be provided by members of the fire department who would also be members of the ambulance corporation (see 1997 Ops St Comp No. 97-23, at 43 [no statutory prohibition against an individual becoming a member of a volunteer fire company and a volunteer ambulance corps at the same time]). For purposes of this inquiry, we assume that all services by such individuals would be performed solely in their discrete capacities as members of an ambulance corps, separate and distinct from the fire department, and not in their capacities as volunteer firefighters. In that case, it would appear that the prohibition in General Municipal Law § 209-b (4) against the acceptance of gratuities by a volunteer firefighter would not be relevant to this inquiry (see Mem of Joint Legis Comm on Fire Laws, 1957 McKinney's Session Law of NY, at 2171 [purpose of General Municipal Law § 209-b (4), in part, was to prohibit acceptance of any remuneration or gratuity by a firefighter for services by an “emergency relief squad,” now referred to in General Municipal Law § 209-b as “emergency rescue and first aid squads”] .