derek p. cole carolyn j. frank section 201 of the ems act: is it working as the legislature...

DEREK P. COLECAROLYN J. FRANK

Section 201 of the EMS Act: Is it Working as the Legislature

Intended?

Outline of Presentation

OverviewSummary of Section 201’s legislative intentInterpretation of Section 201’s six clausesConclusion: Is Section 201 working as the

Legislature intended?Questions and answers

Section 201: An Overview

Section 201 is part of the “Emergency Medical Services System and the Prehospital Emergency Medical Care Personnel Act,” or as more commonly known, the “EMS Act.”

The EMS Act is Division 2.5 of the California Health & Safety Code.

Section 201 is part of Chapter 4 of the EMS Act, which is entitled “Local EMS Agency.”

It is technically codified as “Section 1797.201.”


Section 201 is referred to as a “grandfather” statute (though statute does not use term)

It gives certain cities and fire districts the ability to continue administration of EMS they provided as of June 1980

Section 201 was a late addition to the EMS Act

It was added to address concerns expressed by the California League of Cities


The Statute:

“Upon the request of a city or fire district that contracted for or provided, as of June 1, 1980, prehospital emergency medical services, a county shall enter into a written agreement with the city or fire district regarding the provision of prehospital emergency medical services for that city or fire district. Until such time that an agreement is reached, prehospital emergency medical services shall be continued at not less than the existing level, and the administration of prehospital EMS by cities and fire districts presently providing such services shall be retained by those cities and fire districts, except the level of prehospital EMS may be reduced where the city council, or the governing body of a fire district, pursuant to a public hearing, determines that the reduction is necessary.

“Notwithstanding any provision of this section the provisions of Chapter 5 (commencing with Section 1798) shall apply.”


Six Clauses: Request Clause


The Statute:




Six Clauses: Request Clause Provider Clause


The Statute:




Six Clauses: Request Clause Provider Clause Agreement Clause


The Statute:




Six Clauses: Request Clause Provider Clause Agreement Clause Continuation of Service Clause


The Statute:




Six Clauses: Request Clause Provider Clause Agreement Clause Continuation of Service Clause Reduction in Service Clause


The Statute:




Six Clauses: Request Clause Provider Clause Agreement Clause Continuation of Service Clause Reduction in Service Clause Medical Control Clause


The Statute:



Legislative Intent

Demand for government to provide EMS grew significantly in the 1960s and 1970s

But by late 1970s, regulation of EMS was still “haphazard” (Justice Mosk)

At the time, state law authorized public agencies to provide ambulance service

But nothing in the law required EMS providers to coordinate or integrate their activities

Legislative Intent

Legislature began to seriously consider EMS regulation in late 1978

Senator John Garamendi introduces SB 125 in December 1978

Initial bill was modest, mostly addressing training and certification

But the bill underwent a “two-year odyssey” during which its scope was greatly broadened

Legislative Intent

“As finally enacted in late 1980, the EMS Act contained 100 different provisions in 9 separate chapters and created a comprehensive system governing virtually every aspect of prehospital emergency medical services. The Legislature’s desire to achieve integration and coordination is evident throughout.”

County of San Bernardino v. City of San Bernardino (1997) 15 Cal.4th 909, 915.

Legislative Intent

“The EMS [Act] accomplishes this integration through what is essentially a two-tiered system of regulation. [¶]

“At the state level, the Emergency Medical Services Authority … performs a number of different functions relating to the coordination of EMS throughout the state….

“The second tier of governance under the EMS Act is occupied by the local EMS agency….”

San Bernardino, 15 Cal.4th at pp. 915-916.

Legislative Intent

The clear intention of the Legislature was for integration of services by providers within a local EMS system.

Within the two-tiered system of governance, only LEMSAs are given authority to “plan, implement, and evaluate an [EMS] system….” (Health & Safety Code, § 1797.204.)

Cities and fire districts are given no regulatory authority; there is no third level of regulation.

Legislative Intent

Health & Safety Code § 1797.178

“No person or organization shall provide advanced life support or limited advanced life support unless that person or organization is an authorized part of the emergency medical services system of the local EMS agency….”

Legislative Intent

Late in the legislative process, cities expressed concerns about the effect of the EMS Act on their administration of EMS.

In June 1980, the League of Cities wrote Senator Garamendi, stating its “primary concern lies with staffing levels, transportation, and system organization and management.”

Legislative Intent

The League continued:

“[W]e think that staffing levels of city paramedic programs, and the transportation and system organization[,] which we would assume means where paramedics are stationed, how they [are] dispatched with engine companies and the utilization of their time, whether or not they are full time firemen or not, etc., are fundamentally management decisions of the city fire department and ultimate the city council.”

Legislative Intent

It added:

“We believe this is because city taxpayers are financially supporting this program and city management is responsible for their efficient utilization. The city council is responsible for the level of service and the cost of the program, wholly unrelated to medical questions.”

Legislative Intent

The Legislature responded to these concerns by adding Section 201 to the EMS Act.

This section was intended to be “transitional.” (San Bernardino, 15 Cal.4th at p. 922.)

The Act evinces “a manifest legislative expectation that cities and counties will eventually come to an agreement with regard to the provision of [EMS]….” (Ibid.)

Legislative Intent

“[S]ection 1797.201 is not ‘a broad recognition or authorization of autonomy in the administration of emergency medical services for cities and fire districts’ [citation], but is essentially a grandfathering of existing emergency medical service operations until such time as these services are integrated into the larger EMS system.…

Legislative Intent

“The apparent purpose of this grandfathering provision was to ‘allow such entities to protect the investments they had already made in various assets …,’ as well as to ensure against disruption of adequate emergency medical services….”

Valley Medical Transport, Inc. v. Apple Valley Fire Protection Dist. (1998) 17 Cal.4th 747, 758.

Legislative Intent

“Indeed, the statute makes clear that cities and fire districts have not only the right but the obligation to continue to provide emergency medical services until an agreement is reached with a county.”

Valley Medical, 17 Cal.4th at p. 758.

Legislative Intent

To summarize, the Legislature intended that: Section 201 would protect investments cities and fire

districts had made in developing their EMS systems prior to June 1980.

City and fire district providers would integrate into local EMS systems by agreement with LEMSAs.

Prior to integration, existing services would be continued at the same level.

The pre-agreement period would be temporary.

The Six Clauses of Section 201

Six Clauses: Request Clause Provider Clause Agreement Clause Continuation of Service Clause Reduction in Service Clause Medical Control Clause

The Six Clauses of Section 201

Six Clauses (Reorganized): Provider Clause Reduction of Service Clause Continuation of Service Clause Medical Control Clause Agreement Clause Request Clause

Provider Clause

Section 201: Identifies providers that “contracted for or provided, as of June 1, 1980, prehospital [EMS].”

These are “grandfathered” providers.Prehospital EMS includes:

Ambulance service Advance life support Limited advance life support Emergency medical dispatch (maybe; discussed later)

Provider Clause

If a provider ceased providing services after enactment of the EMS Act, it cannot resume providing such service based on claimed rights under Section 201.

Valley Medical, 17 Cal.4th at p. 758.

Reduction in Service Clause

Section 201: “[T]he level of prehospital EMS may be reduced where the city council, or the governing body of a fire district, pursuant to a public hearing, determines that the reduction [in service] is necessary.”

This clause reinforces that Section 201 was meant to be an obligation statute.

Continuation in Service Clause

Section 201: “Until such time that an agreement is reached, prehospital emergency medical services shall be continued at not less than the existing level, and the administration of prehospital EMS by cities and fire districts presently providing such services shall be retained by those cities and fire districts.”


The key word is “retained.”As San Bernardino explains, grandfathered

providers “can ‘retain’ only those administrative powers that they already possessed.”

Thus, this clause is interpreted to permit only increases in the level of service.

Expansions in type of service are not permitted.


A city that did not provide ambulance service prior to June 1980 cannot claim a right to provide such service on the ground it had provided ALS prior to that time. (San Bernardino, 15 Cal.4th at p. 934.)

This is a prohibited change in type of service.In contrast, increases in staffing, vehicles,

and equipment would be changes in level of service.

Medical Control Clause

Section 201: “Notwithstanding any provision of this section the provisions of Chapter 5 (commencing with Section 1798) shall apply.”

“The medical direction and management of an emergency medical services system shall be under the medical control of the medical director of the local EMS agency. This medical control shall be maintained in accordance with standards for medical control established by the authority.” (Health & Safety Code, § 1798(a).)


Grandfathered cities are permitted to maintain administration of EMS services “subject to the significant constraint placed on its administrative discretion by the EMS agency’s medical control authority.”

Valley Medical, 17 Cal.4th at p. 755, emphasis added.


What constitutes medical control? Health & Safety Code § 1797.220: “… dispatch,

patient destination policies, patient care guidelines, and quality assurance requirements.”

San Bernardino: “[T]he Legislature conceived of ‘medical control’ in fairly expansive terms, encompassing matters directly related to regulating the quality of emergency medical services, including policies and procedures governing dispatch and patient care.” (15 Cal.4th at p. 926.)


Example: San BernardinoFacts:

The City changed its dispatch policy to dispatch ambulance providers at a different response level than the city’s own resources.

LEMSA responded by enacting two policies:

It required that if both public and private responders arrive at same time, the first responder would be responsible for patient care.

It also required that dispatchers must dispatch public and private responders at same level of response.


Court found the LEMSA policies encompassed medical control because they: “… pertain[ed] to the speed with which EMS providers

other than the City will be dispatched to the scene of an emergency, and how the various EMS providers will interact at the emergency scene”; and

“… [were] highly relevant to the provision of emergency medical care, affecting the speed and effectiveness of the response….”

(San Bernardino, 15 Cal.4th at pp. 926-927.)


Example: City of Stockton v. County of San Joaquin “Dispatch” case (trial court)

Facts: County policies 3001 and 3001A routed 911 medical calls

directly to the ambulance provider for EMD interrogation.

City refused to allow 911 medical calls to be routed to the ambulance provider, asserting that it was a grandfathered city and, thus, had the right to continue to perform EMD.

The County asserted that routing of the 911 medical calls to the ambulance company enabled the ambulance to arrive on scene more quickly, resulting in better patient care.


Trial court’s decision: “Policies … were adopted for medical reasons and were

intended to improve the speed and effectiveness of emergency medical response throughout [San Joaquin] County.”

The San Joaquin County Emergency Medical Services Agency and its director have the authority to control emergency medical dispatch within the City of Stockton.

“EMS agency’s medical director is vested with exclusive authority over the ‘medical direction and management’ of the system.”

“[G]randfathered providers, like all other EMS providers, must comply with local EMS agency policies that constitutes an exercise of medical control.”

Agreement Clause

Section 201: “Until such time that an agreement is reached….”

“[T]he phrase ‘[u]ntil such time that an agreement is reached’ does indeed suggest an intent on the part of the legislative drafters that agreements between cities and counties be reached, and that this ‘pre-agreement’ period would be temporary.”

San Bernardino, 15 Cal. 4th at pp. 924-925, emphasis added.

But what constitutes an “agreement”?

Agreement Clause

County of San Joaquin v. City of Stockton “ALS” case (trial court) In 1986, City and County entered into an agreement regarding the

City’s provision of ALS within the County. Agreement stated:

“WHEREAS, COUNTY and [CITY] desire to participate in a County-wide program for the continuation and operation of an advanced life support system utilizing Emergency Medical Technician-Paramedic[.]”

“WHEREAS, the COUNTY desires that [CITY] participate in such a system[.]”

PROVIDER SHALL “[m]eet all program requirements, regulations, procedures, policies, and protocols as have been or may be, established by the San Joaquin Emergency Medical Services Agency.”

“Failure to comply with any of the above provisions may result in action by the Emergency Medical Services Coordinator/Emergency Medical Services Medical Director for immediate termination of the [City] as an advanced life support (ALS) provider, with subsequent investigation by the San Joaquin Emergency Medical Services Agency to review the desirability of continuation of that [City] as an ALS Provider."

Agreement Clause

County of San Joaquin v. City of Stockton (ALS) Court held: Section 201 “was intended to be a temporary, transitional

provision.”

By signing the Agreement, “the City was integrated into the County emergency medical services system.”

“The City relinquished any grandfathered right it once possessed to provide advanced life support services by entering into the 1986 Agreement with the County.”

“It is not necessary for a provider to relinquish complete control over its emergency medical services to a county for an agreement to be one under [Section 201].”

“[T]he City of Stockton is not a grandfathered provider for any pre-hospital services within the meaning of the EMS Act by virtue of entering into the Agreement….”

Request Clause

Section 201: “Upon the request of a city or fire district….”

“[T]he statute makes clear that [grandfathered] cities and fire districts must be integrated through voluntary agreement, and there is no statutory deadline imposed for requesting or reaching such agreement.”

San Bernardino, 15 Cal.4th at p. 925.

Request Clause

County of San Joaquin v. City of Stockton “ALS” case (trial court) “The question is whether or not the [City] manifested

‘consent to integrate into a local emergency medical services system’” and not who requested the agreement.

“It is the language of the purpose and substance of the Agreement which matters rather than who first requested entry into the Agreement.”

Concluding Remarks

Is Section 201 working the way the Legislature Intended? 33 years later, several grandfathered cities and fire

districts still exist within local EMS systems.

Many 201 providers are unlikely to request integration agreements for a number of reasons: Parochial concerns

Fear loss of local control

Revenue generation, particularly in light of the impact of tax initiatives

Fear being forced out of service

Questions?

derek p. cole carolyn j. frank section 201 of the ems act: is it working as the legislature...

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