Opinion 98 - 18


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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.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 -- Fees (imposition of fees for services of an emergency rescue and first aid squad)

FEES -- Imposition of (for services of an emergency rescue and first aid squad)

FIRE DISTRICTS -- Ambulance Service (imposition of fees for services of an emergency rescue and first aid squad) -- Powers and Duties (imposition of fees for services of an emergency rescue and first aid squad)

GENERAL MUNICIPAL LAW, §209-b(4); PUBLIC HEALTH LAW, §3008(7): 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. Fire districts continue to be subject to 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.

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, §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.). 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, §209-b[2][a], [d], [e]; but see, General Municipal Law, §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, §209-b[1][b], [2][c]; Town Law, §176[22]; see also, 1987 Opns St Comp No. 87-39, p 61). Section 209-b(4) of the 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 Comp No. 94-7, p 11; 1992 Opns St Comp 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:

to 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 certified first responders, emergency medical technicians and advanced emergency medical technicians and minimum equipment and communication standards for advanced life support first response services and ambulance services (Public Health Law, §3000).

For purposes of Article 30, "ambulance service" is defined to include any:

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[2]).

"Advanced life support care" encompasses "definitive acute medical care provided, under medical control, by advanced emergency medical technicians within an advanced life support system" (Public Health Law, §3001[11]). An organization that provides advanced life support care, but does not transport patients, is defined as an "advanced life support first response service" (Public Health Law, §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, §§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, §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 need prior to granting its approval for the establishment of an additional emergency medical service or ambulance service (Public Health Law, §3003[2], [5]). Applications for a 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 requirement or provision of this article or any other applicable provision 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 or municipal ambulance services to a regional emergency medical 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-A). 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]otwithstanding any other provision of law," it also contains a statement that "[n]othing in this article shall be deemed to exclude 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 provision of law" (emphasis supplied). It is our view that this statement recognizes the fact that a comprehensive, detailed statutory scheme governing the procedures authorizing 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 had 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 advanced 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 fire 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, §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 home rule authority under Article 9 of the State Constitution (see, NY Const., art IX, §3[d][2]; see also, Municipal Home Rule Law, §2[8]). In addition, this Office has expressed the view that the town within which a 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). Further, 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 in this area (see, Opn 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 support first responder services or municipal ambulance 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 assuming, 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.

September 1, 1998
Thomas B. Hayner, Esq., Attorney at Law
Niskayuna Consolidated Fire District No. 1

1. Section 3004 of the Public Health Law requires that voluntary ambulance services and municipal ambulance service operating after September 1, 1975, must 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, §§9, 25, and chapter 731 of the Laws of 1993, §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 operated unless it possesses a valid ambulance service operating certificate.

2. It should be noted that a fire district is an independent corporate entity, constituting a district corporation, governed by a separate board of fire commissioners (Town Law, §174; General Construction Law, §66[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 a fire district on its own behalf.

3. In 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 21, 1997, from the Association 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 subdivision 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 or fire district.