Opinion 98 - 9

AMBULANCE DISTRICTS -- Contracts (imposition of charge per call by entity providing service) -- Fees (imposition of charge per call by entity providing service)

AMBULANCE SERVICE -- Contracts (imposition of charge per call by entity providing service) -- Fees (imposition of charge per call by entity providing service)

FEES -- Imposition of (by entity providing ambulance service pursuant to contract)

GENERAL MUNICIPAL LAW, §122-b; TOWN LAW, §198(10-f): A town board, which provides an emergency medical service, a general ambulance service or a combination thereof on a town-wide basis or in an ambulance district, may fix a schedule of municipal fees or charges to be paid by persons requesting the use of those services. Absent action by the town board to fix such a schedule of fees or charges for the services to be provided on a town-wide basis or within an ambulance district, persons within the town or the ambulance district must receive those services without a fee or charge.

This is in response to your inquiry concerning the imposition of user fees within an ambulance district. You indicate that the town has established an ambulance district and contracted with a not-for-profit ambulance company to provide services within the district. Further, you indicate that the town pays a fixed consideration to the ambulance company pursuant to the contract and that no provision has been made for the imposition of user fees on persons requesting the use of the services provided by the ambulance district. You ask whether the ambulance company may impose a fee on those making use of the company's services within the district and provide for the payment of that fee to the company.

Town Law, §198(10-f)(a) prescribes the powers that a town board may exercise with respect to an ambulance district. Section 198(10-f) provides that, in order to provide an emergency medical service, a general ambulance service, or a combination of those services, the town board may:

(i) 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;

(ii) Contract with one or more individuals, municipal corporations, associations, or other organizations having sufficient trained and experienced personnel except an emergency rescue and first aid squad of a fire department or fire company which is subject to the provisions of section two hundred nine-b of the general municipal law for operation, maintenance and repair of such emergency medical service or ambulance vehicles and for the furnishing of prehospital emergency treatment;

(iii) Contract with one or more individuals, municipal corporations, associations, or other organizations except an emergency rescue and first aid squad of a fire department or fire company which is subject to the provisions of section two hundred nine-b of the general municipal law 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;

(iv) Employ any combination of the methods authorized in subparagraphs (i), (ii) and (iii) of this paragraph.

The town board is also authorized to establish a schedule of fees or charges to be paid by persons requesting the use of the services of the ambulance district and to "provide for the collection of such fees and charges, or formulate rules and regulations for the collection thereof by the individuals, municipal corporations, associations, or other organizations furnishing service under contract. . . ." (Town Law, §198[10-f][b]; see also 1993 Opns St Comp No. 93-26, p 46).

The above-mentioned provisions were added to the Town Law pursuant to chapter 24 of the Laws of 1988 and were intended to allow a town board to provide ambulance service within an ambulance district in the same manner such service may be provided on a town-wide basis (see Mem of Department of State, 1988 McKinney's Session Laws of NY, at A-10). Consequently, these provisions parallel those found in section 122-b of the General Municipal Law, which authorizes the provision of general ambulance service on a town-wide basis.

Section 122-b of the General Municipal Law was initially enacted in 1954 to authorize the provision of general ambulance services by municipalities (see chapter 598 of the Laws of 1954). Under subdivision 1 of section 122-b, counties, cities, towns and villages may provide general ambulance service within their boundaries directly or by contracting with other persons or entities for such services. Subdivision 2 of section 122-b authorizes a county, city, town or village that provides general ambulance service, directly or by contract, to fix a schedule of fees or charges for that service and to provide for the collection thereof. We have consistently interpreted this provision of section 122-b as requiring that the amount of any fee or charge to be imposed be fixed by the municipality and that any such fee belongs to the municipality (see, e.g., 34 Opns St Comp, 1978, p 204; 1975 Opns St Comp No. 75-49, unreported; 25 Opns St Comp, 1969, p 90; 19 Opns St Comp, 1963, p 24; 16 Opns St Comp, 1960, p 478). These opinions also indicate that, where a municipality contracts to have a person or entity provide general ambulance services on its behalf, the total consideration to be paid to the person or entity providing the service is required to be stated in the contract, that there is no authority for the payment of amounts to the service provider above the consideration stated in the contract, and that the person or entity providing the service may not itself impose any fee upon persons receiving the services provided for in the contract (ibid.). Clearly, section 122-b authorizes the provision of general ambulance service, whether directly or by contract, as a publicly funded municipal function (see Mem of Joint Legislative Committee on Fire Laws, 1957 McKinney's Session Laws of NY, at 2171; cf. 1988 Opns St Comp No. 88-60, p 119, concerning the granting of a license or concession to a private party).

We note that subdivision 2 of section 122-b was amended by chapter 303 of the Laws of 1980 to provide that a municipality "may provide for the collection of such fees and charges or may formulate rules and regulations for the collection thereof by the individuals, municipal corporations, associations or other organizations furnishing general ambulance service under contract . . . " (emphasis added). The sponsor's memorandum in support of this legislation clearly indicates that it was intended to address certain portions of the opinions of this Office, discussed above, by permitting the collection of fees by persons or entities other than the contracting municipality (1982 Opns St Comp No. 82-26, p 33). Although the 1980 legislation created an exception to the general rule that municipal fees must be collected by the appropriate municipal officer or employee (see 1990 Opns St Comp No. 90-53, p 120; see also Mem of the Division of the Budget, Bill Jacket, L 1980, ch 303), it has remained our view that section 122-b requires that the amount of any fee or charge to be imposed for services rendered be fixed by the municipality and that since "such fees or charges" are municipal charges, the "rules and regulations for the collection thereof" should require proper recordkeeping and accounting by the person or entity collecting the fees or charges on behalf of the municipality (1991 Opns St Comp No. 91-20, p 64; Opn No. 82-26, supra).

Given that the language relating to the imposition and collection of fees found in paragraph b of subdivision 10-f of section 198 of the Town Law is essentially the same as that found in subdivision 2 of section 122-b of the General Municipal Law and that it was the intent of the Legislature to authorize the provision of the same services within an ambulance district as can be provided town-wide, we conclude that the only authority to fix a schedule of fees or charges to be imposed on persons requesting the use of the services provided in an ambulance district within the town is that set forth under subdivision 10-f of section 198. Accordingly, it is our opinion that, absent action by the town board to fix a schedule of municipal fees or charges pursuant to paragraph b of subdivision 10-f of section 198, persons within an ambulance district requesting those services that the town board has determined to provide, directly or by contract, within the ambulance district, must receive those services without a fee or charge.⁽¹⁾

June 17, 1998
Emily Pines, Esq., Town Attorney
Town of Brookhaven

1. To the extent a town board has not fixed a schedule of fees or charges to offset the costs of an ambulance district, Town Law, §§202(3) and 202-a(1) provide that the costs of establishment and operation and maintenance of an ambulance district shall be assessed against the properties within the district on an ad valorem basis (see 1993 Opns St Comp No. 93-26, p 46). Similarly, to the extent that a town board has not fixed a schedule of fees or charges to offset the costs of general ambulance service provided pursuant to General Municipal Law, §122-b, the cost of such a service would be a town-wide charge (see 1988 Opns St Comp No. 88-69, p 137; 1980 Opns St Comp No. 80-85, unreported).