Opinion 2004 - 1


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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.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

GENERAL MUNICIPAL LAW §209-b; TOWN LAW §176: A fire district may not impose fees for emergency rescue services provided by an emergency rescue and first aid squad of the fire district fire department, irrespective of whether the services involve an ambulance.

You ask whether the prohibition against the imposition of fees in General Municipal Law §209-b(4) applies to all emergency rescue services provided by an emergency rescue and first aid squad of a fire district fire department, irrespective of whether the services involve an ambulance.

General Municipal Law §209-b authorizes fire districts to organize within their fire departments and fire companies emergency rescue and first aid squads1 (hereinafter, "squads") composed of firefighters who are members of the department or company (General Municipal Law §209-b[1][a]). Pursuant to section 209-b(1), the squad is authorized to render services in case of accidents, calamities or other emergencies2 in connection with which its services may be required, as well as in the case of alarms of fire.

There is nothing in section 209-b(1) suggesting that services in the case of emergencies are limited to those involving an ambulance. To the contrary, it is apparent that such services include both ambulance services and other rescue and first aid services (see, e.g., General Municipal Law §209-b[5], defining the term "emergency", in relation to the operations of fire departments; Town Law §176[13], authorizing fire districts generally to purchase apparatus and equipment for emergency rescue and first aid squad, without limitation to ambulances and items related thereto; Town Law §176[22], authorizing fire district to contract for emergency services and general ambulance service; 30 Opns St Comp, 1974, p 143, concluding that a fire district may purchase an ambulance and "other rescue equipment" for use by the emergency rescue and first aid squad; Bill Jacket for L 1964, ch 520, letter dated March 24, 1964 from Senator Eustis Paine to Hon. Sol Neil Corbin, referring to acquisitions of "specialized equipment such as ambulances, vehicles carrying light rescue, first aid and oxygen equipment." [emphasis added]).

In 1957, a new subdivision two was added to section 209-b by chapter 849 of the Laws of 1957. Paragraph a of subdivision two provides, inter alia, that the governing board of any fire district that has in its fire department an emergency rescue and first aid squad composed mainly of volunteer firefighters, may authorize the squad to furnish general ambulance service. The grant of authority for general ambulance service was intended to be distinct from the pre-existing authority for emergency services, and allow squads to provide ambulance services "unrelated to any fire or emergency" (Bill Jacket for L 1957, ch 849, Memorandum to the Governor by the Department of Audit and Control, dated April 9, 1957).

The 1957 amendment also added subdivision four to section 209-b, which provides, in pertinent part, as follows:

4. Fees and charges prohibited. Emergency and general ambulance service authorized pursuant to this section shall be furnished without cost to the person served…. (emphasis added).

The primary issue at hand, therefore, is whether the underlined phrase in subdivision 4 is intended to apply to "emergency service" and "general ambulance service", or only to "emergency ambulance service" and "general ambulance service".

Significantly, prior to the 1957 fee prohibition, there was no mention in section 209-b of "emergency ambulance service" as a discrete activity distinguished from the broader term "emergency service". Moreover, the legislation adding the fee prohibition to subdivision four also amended subdivision one of section 209-b to refer specifically to "emergency services," thereby suggesting that the fee prohibition is to be read as applying to all "emergency services," and not just to "emergency ambulance services."3

Further, there is no definitive indication in the legislative history that the fee prohibition was intended to relate only to ambulance services. In fact, consistent with the addition of the reference to "emergency services" in section 209-b(1), the legislative history of section 209-b(4) suggests that the fee prohibition was intended to apply to all "emergency services", irrespective of whether an ambulance is involved, because it contains no discussion whatsoever of the authority to impose a fee for any services. We believe the lack of any such discussion is probative in this instance. If the legislative intent was to prohibit fees only for services involving an ambulance, and to permit fees for other services, it is reasonable to expect at least a passing mention, in the legislative history, of that dichotomy.

Thus, given the absence of the discrete term "emergency ambulance service" at the time of the 1957 amendment, and the most reasonable inference to be drawn from the legislative history of that measure, it is unlikely that the Legislature intended the fee prohibition to apply only to ambulance services and not to other emergency services. In our opinion, therefore, the 1957 fee prohibition applies to rescue services, emergency services, emergency ambulance services and general ambulance services, irrespective of whether the service involves the use of an ambulance.

Moreover, even assuming arguendo that the prohibition in subdivision four was intended to apply only to emergency services involving an ambulance, we note that fire districts have only those powers expressly granted by statute or necessarily implied therefrom (Town Law §176[21]; see, e.g., 2003 Opns St Comp No. 2003-4; 2000 Opns St Comp No. 2000-20, p 53; 1993 Opns St Comp No. 93-24, p 42; cf. Wells v Town of Salina, 119 NY 280). We find no statute that expressly or by necessary implication authorizes a fire district to impose a fee for services rendered by the emergency rescue and first aid squad of the fire district fire department (see 1990 Opns St Comp No. 90-39, p 88; compare General Municipal Law §122-b, authorizing municipalities to fix a schedule of fees or charges to be paid by persons requesting ambulance services).

Accordingly, it is our opinion that a fire district may not impose fees for emergency rescue services provided by an emergency rescue and first aid squad of the fire district fire department, irrespective of whether the services involve an ambulance.

February 2, 2004

Raymond John Abdella, Jr., Chair
Hinsdale Fire District #1

1 "Emergency rescue and first aid squads" were originally referred to as "emergency relief squads". In 1964, the word "relief" was replaced with the words "rescue and first aid" to conform the terminology "to the use and the practice and make more definitive the service rendered by these units …" (Bill Jacket for L 1964, ch 520, letter dated March 24, 1964 from Senator Eustis Paine to Hon. Sol Neil Corbin).

2 Prior to 1956, section 209-b(1) provided for services in the case of accidents, "public" calamities or other emergencies, suggesting that incidents had to be "public" in nature to receive service (see, e.g., 8 Opns St Comp, 1952, p 133). The word "public", however, was deleted from section 209-b(1) by Chapter 438 of the Laws of 1956.

3 The term "emergency ambulance service" - as distinct from "emergency services" - does not appear in the statute until 1969. In 1969, the Legislature amended section 209-b(1) by adding a new paragraph (b) to authorize municipalities and fire districts that have fire departments, but have not authorized the departments to render "emergency ambulance service" to contract for such services with another municipality or fire district that has in its fire department an emergency rescue and first aid squad authorized to render "emergency ambulance service" (see L 1969, ch 922). One purpose of the amendment was to facilitate "emergency ambulance service" to smaller local governments that did not maintain facilities and personnel to provide separate "emergency ambulance service" (see Division of Budget Report on S4705 of 1969). Additionally, in a recent amendment to General Municipal Law §122-b, the Legislature used the phrase "general ambulance and/or emergency ambulance service" in connection with section 209-b (see L 2003, ch 378).