Opinion 98 - 21


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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.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 emergency ambulance service) -- Fire Districts (contracts for emergency ambulance service)

FIRE DISTRICTS -- Ambulance Service (circumstances in which district may contract for provision of) -- Powers and Duties (authority to contract for emergency ambulance service)

MUNICIPAL COOPERATION -- Ambulance Service (joint contract by town and fire district)

TOWNS -- Powers and Duties (authority to contract for emergency ambulance service)

GENERAL MUNICIPAL LAW, §§119-o, 122-b, 209-b; TOWN LAW, §176(22): Although a town is authorized, pursuant to section 122-b of the General Municipal Law, to enter into a contract with a private ambulance company to provide advanced life support services on a town-wide basis, a fire district has no authority to enter into a contract with a private ambulance company for such services. Consequently, a town and a fire district located therein may not, pursuant to General Municipal Law, article 5-G, enter into a municipal cooperation agreement under which advanced life support services would be provided by a private ambulance company.

You inquire whether, pursuant to article 5-G of the General Municipal Law, a town and a fire district located within the town may jointly contract with a private ambulance company for the provision, by the ambulance company, of advanced life support (hereinafter "ALS") service. According to your inquiry, the emergency rescue and first aid squad of the fire district fire department currently provides a basic emergency ambulance service. The town does not currently provide ambulance service, directly or by contract. The town and the fire district are considering entering into a municipal cooperation agreement under which they would contract with a private ambulance company for the provision, by the ambulance company, of a higher level of services for those calls requiring a greater degree of emergency medical treatment than the emergency rescue and first aid squad of the fire district fire department is equipped to provide. The ambulance company would provide necessary care at the scene, but would not provide transportation for the patient.(1) The municipal cooperation agreement would include provisions for summoning the private ambulance company, housing the private ambulance company's ALS vehicle, insuring the vehicle, and billing for the ALS service provided by the private ambulance company.

Article 5-G of the General Municipal Law (§§119-m - 119-oo) contains authority for municipal corporations and districts, in addition to any other general or special powers, to enter into agreements for the performance among themselves, or one for the other, of their respective functions, powers and duties on a cooperative or contract basis, or for the provision of a joint service (General Municipal Law, §119-o[1]). Section 119-n(a) defines "municipal corporation" to include towns and fire districts. The term "joint service" for purposes of article 5-G includes: "the joint provision of any municipal facility, service, activity, project or undertaking or the joint performance or exercise of any function or power which each of the municipal corporations or districts has the power by any other general or special law to provide, perform or exercise, separately. . ." (General Municipal Law, §119-n[c]).

Fundamentally, a municipal corporation may participate in a cooperation agreement only for the performance of those functions which it is empowered to perform individually (General Municipal Law, §§119-n[c], 119-o[1]; Rice v Cayuga-Onondaga Healthcare Plan, 190 AD2d 330, 599 NYS2d 344; 1996 Opns St Comp No. 96-19, p 41;1993 Opns St Comp No. 93-6, p 10; 1991 Opns St Comp No. 91-14, p 53). Consequently, before a municipal corporation can agree to act cooperatively under article 5-G, it must be determined that each municipal corporation entering into the agreement has the statutory authority, independent of article 5-G, to perform the function on its own (id.).

In the instant case, section 122-b(1) of the General Municipal Law authorizes towns, villages, cities and counties to provide:

an emergency medical service, a general ambulance service or a combination of such services for the purpose of providing prehospital emergency medical treatment or transporting sick or injured persons found within the boundaries of the municipality to a hospital, clinic, sanatorium or other place for treatment of such illness or injury. . . .

"Prehospital emergency treatment" is defined as "that care provided by certified emergency technicians or certified advanced emergency medical technicians certified pursuant to the provisions of article thirty of the public health law" (General Municipal Law, §122-b[1][f]; see also, General Municipal Law, §122-b[1-a][a], [b]; Public Health Law, §3001[6], [7]).

Under section 122-b(1) a town, having determined to provide these services, may:

(a) Acquire by gift or purchase one or more motor vehicles suitable for such purpose and supply and equip the same with such materials and facilities as it may consider necessary for prehospital emergency treatment, and may operate, maintain, repair and replace such vehicles and such supplies and equipment;

(b) Contract with one or more individuals, municipal corporations, associations, or other organizations, having sufficient trained and experienced personnel, for operation, maintenance and repair of such emergency medical service or ambulance vehicles and for the furnishing of prehospital emergency treatment;

(c) Contract with one or more individuals, municipal corporations, associations, or other organizations to supply, staff and equip emergency medical service or ambulance vehicles suitable for such purposes and operate such vehicles for the furnishing of prehospital emergency treatment;

(d) Employ any combination of the methods authorized in paragraph (a), (b) or (c).

Thus, section 122-b authorizes towns to provide ambulance services directly or by contracting with "individuals, municipal corporations, associations or other organizations".(2) It has been the opinion of this Office that since section 122-b(1) gives a town discretion to offer a particular type of service (i.e., emergency medical service, a general ambulance service, or a combination thereof), and since section 122-b(2) requires the town to formulate rules and regulations relating to the use of ambulance equipment and apparatus in the provision of emergency medical services or general ambulance services, a town may define and limit the level or scope of its ambulance service operations (1991 Opns St Comp No. 91-20, p 64). Based on the foregoing, it is our opinion that the town has the requisite authority to enter into an agreement pursuant to article 5-G of the General Municipal Law to contract with a private ambulance company for the provision of ALS services by that company (id.; 1982 Opns St Comp No. 82-182, p 234).

Conversely, it is our opinion that a fire district lacks the authority to enter into such a contract with a private ambulance company for ALS services. Under section 209-b of the General Municipal Law, the board of fire commissioners of a fire district is authorized 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.). ALS services would be among the services that the board of fire commissioners could authorize an emergency rescue and first aid squad to provide (see Public Health Law, §3008[7]).

There are only limited circumstances, however, in which the board of fire commissioners of a fire district is authorized to contract for the provision, by certain third parties, of ambulance services within the fire district. Under section 209-b(1)(b) of the General Municipal Law, the board of fire commissioners of a fire district whose own fire department has not been authorized to render emergency ambulance service may contract to obtain that service from another city, town, village or fire district which has in its fire department an emergency rescue and first aid squad duly authorized to render emergency ambulance service (see 1987 Opns St Comp No. 87-39, p 61). In addition, section 176(22) of the Town Law provides that the board of fire commissioners of a fire district, as part of a fire protection contract with a city, village or fire district, or incorporated fire company having its headquarters outside the district, may contract for emergency ambulance service (Opn No. 87-39, supra). Finally, section 176(22) also provides that, in the event that the fire department or fire company furnishing fire protection within the district pursuant to contract does not maintain and operate an ambulance, and provision has not been made for ambulance service in the area of the district pursuant to section 122-b of the General Municipal Law, the fire district may contract for emergency ambulance service with a city, village, fire district the fire department of which, or a fire company having its headquarters outside the district which, maintains and operates an ambulance (id.; 1970 Opns St Comp No. 70-773, unreported).

Here, since we are informed that the board of fire commissioners does not receive fire protection by contract and has already authorized its fire department to render emergency ambulance service, the board is without authority under section 176(22) of the Town Law or section 209-b(1)(b) of the General Municipal Law to enter into a contract with any third party for the provision of those services by the third party. In addition, even if the board of fire commissioners had not authorized its fire department to render emergency ambulance service, the board would be authorized, under section 209-b(1)(b), to enter into a contract for the provision of those services only with a city, town, village or fire district which has in its fire department an emergency rescue and first aid squad duly authorized to render emergency ambulance service. Similarly, even if the fire district did contract to receive fire protection, section 176(22) of the Town Law would authorize a contract for emergency ambulance service only with a city, village, fire district the fire department of which, or incorporated fire company having its headquarters outside the fire district which, maintains and operates an ambulance. Therefore, in the absence of State legislation, the board of fire commissioners is not authorized to contract for the provision of ALS services by a private ambulance company (see 1982 Opns St Comp No. 82-310, p 396; 1979 Opns St Comp No. 79-611, unreported).

In light of the foregoing, although a town is authorized, pursuant to section 122-b of the General Municipal Law, to enter into a contract with a private ambulance company for the provision, by the ambulance company, of advanced life support services on a town-wide basis, a fire district has no authority to enter into a contract with a private ambulance company for such services. Consequently, town and a fire district located therein may not, pursuant to General Municipal Law, article 5-G, enter into a municipal cooperation agreement under which advance life support services would be provided by a private ambulance company.(3)

December 3, 1998
Joseph L. Latwin, Esq., Attorney
Somers Fire District

Robert J. Ponzini, Esq., Attorney
Town of Somers

1. For purposes of this opinion we will assume that the ALS service contemplated would constitute an advanced life support first responder service under article 30 of the Public Health Law. Section 3001(17) of the Public Health Law defines an "advance life support first response service" as an organization that provides advance life support care, but does not transport patients. "Advance life support care" is defined as definitive acute medical care provided, under medical control, by advanced emergency medical technicians within an advanced life support system (Public Health Law, §3001[11];see also, Public Health Law, 3001[12]).

2. Note that General Municipal Law, §122-b authorizes towns, villages, cities and counties to act individually or jointly. Since fire districts are not named in General Municipal Law, §122-b, however, any authority for a joint contract between a town and a fire district must be found in General Municipal Law, article 5-G.

3. It is not necessary, because the instant inquiry concerns a municipal cooperation agreement authorizing a contract with a private ambulance company, for this Office to consider the effect of the prohibition, found in section 122-b(1)(e) of the General Municipal Law, against a town contracting for the services of an emergency rescue and first aid squad of a fire department or fire company which is subject to the provisions of section 209-b of the General Municipal Law, on other municipal cooperation agreements between towns and fire districts.