BILL ANALYSIS �
AB 210
Page 1
Date of Hearing: April 26, 2011
ASSEMBLY COMMITTEE ON HEALTH
William W. Monning, Chair
AB 210 ( Solorio) - As Amended: April 4, 2011
SUBJECT : Emergency medical services.
SUMMARY : Revises existing statute relating to the role of city,
county or fire districts with regard to prehospital emergency
medical services (EMS). Specifically, this bill :
1)Requires that a local emergency medical services agency
(LEMSA) grant to a city, county or fire district that has been
continuously providing prehospital EMS since June 1, 1980 and
has not entered into an agreement with the LEMSA,
authorization to provide the same services or an exclusive
operating area. Repeals the existing similar provision and
requires the EMS provider to enter into an agreement by
December 31, 2013.
2)Defines "prehospital EMS provider" as a city, county, fire
district or other governmental entity or private entity that
provides first response services at the limited advanced life
support or advanced life support level or provides emergency
ambulance services or dispatches EMS resources.
3)Requires a LEMSA to include all prehospital EMS providers in
its local EMS plans.
4)Requires all prehospital EMS providers to be subject to the
medical control of the LEMSA and to comply with LEMSA policies
and procedures regarding administration of the local EMS
system.
5)Grants a prehospital EMS provider the same right as a LEMSA to
appeal a determination by the Emergency Medical Services
Authority (EMSA) that a LEMSA developed plan does not meet the
required standard.
6)Requires the membership of a county-established emergency
medical care committee to be representative of the EMS
participants.
7)States legislative findings with regard to EMS system
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coordination, that all providers must be guided by consistent,
clear standards regarding their rights, responsibilities, and
duties arising out of the provision of prehospital emergency
medical care, that local agencies must be guided by and
responsive to reasonable and consistent standards for
evaluating the scope, manner and types of services within
their respective jurisdictions, particularly with respect to
exclusive operating areas and states that over 20 years of
litigation magnifies the need for further statutory guidance.
EXISTING LAW :
1)Establishes the state EMSA which is responsible for the
coordination and integration of all state activities
concerning EMS including establishing the minimum standards
for the policies and procedures necessary for medical control
of the EMS system.
2)Authorizes counties to develop an EMS program and designate a
LEMSA responsible for planning and implementing an EMS system.
3)Establishes the 16-member EMS Commission within the California
Health and Human Services Agency and specifies its membership
and appointing authorities and defines the duties.
4)Requires the review and approval of the state EMSA of LEMSA
plans for implementation of emergency medical services and
trauma care systems and authorizes LEMSAs and provides for a
LEMSA to appeal a negative determination to the Commission.
FISCAL EFFECT : This bill has not been analyzed by a fiscal
committee.
COMMENTS :
1)PURPOSE OF THIS BILL . According to the author, in the last
three decades since the enactment of the EMS Act and
particularly the enactment of the provisions relating to
prehospital emergency medical services agreements that allow
for exclusive operating areas, the practice of prehospital
medicine has witnessed significant changes and growth, thereby
making it increasingly more important for a coordinated EMS
system that worked to provide the best possible emergency
medical care. The author states that it has become more
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common for EMS transportation providers to function without
entering into a written agreement with their respective LEMSA.
The author argues that this has created confusion in
determining which EMS providers are required to maintain
services in certain areas. The author further argues that pre
hospital patient care treatment protocols and policies
regarding emergency medical transport also vary by county,
further spurring the need to create more uniform and standard
written agreements between emergency medical transport
services and LEMSAs.
2)BACKGROUND . Prior to 1980, California did not have a central
state agency responsible for ensuring the development and
coordination of EMS services and programs statewide.
According to EMSA, although the many stakeholders in EMS,
including local administrators, fire agencies, ambulance
companies, hospitals, physicians, nurses, and other health
care providers did not agree on many issues, there was a
consensus that a more unified approach to emergency and
disaster medical services was needed. Thus, as the result of
several years of effort by the EMS constituents to establish a
state lead agency and centralized resource to oversee
emergency and disaster medical services, the Emergency Medical
Services System and Prehospital Emergency Care Personnel Act
�SB 125(Garamendi), Chapter 1260, Statutes of 1980] was
passed, creating EMSA and the EMS Act.
The EMS Act accomplishes this integration through what is
essentially a two-tiered system of regulation. At the state
level, EMSA performs a number of different functions relating
to the coordination of EMS throughout the state including
leadership for the planning, development, and implementation
of local EMS systems. These include assessing each EMS area
to determine the need for additional services, coordination
and effectiveness of emergency medical services. EMSA also
reviews EMS plans submitted by a LEMSA to determine whether
the plan effectively meets the needs of the persons served and
are consistent with coordinating activities in the
geographical area served as well as with the guidelines and
regulations established by EMSA.
3)LEMSA . LEMSAs occupy the second tier of governance under the
EMS Act. California has 31 local EMS systems that are
providing emergency medical services for California's 58
counties. Seven regional EMS systems comprised of 34 counties
and 24 single county agencies provide the services. Regional
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systems are usually comprised of small, more rural,
less-populated counties and single-county systems generally
exist in the larger and more urban counties. The EMS Act
provides that counties may develop an EMS program and in so
doing shall designate a LEMSA from among the listed options of
local governmental agencies. LEMSAs are required to develop a
formal plan for the system in accordance with the EMSA's
guidelines and submit the plan to EMSA annually. The EMS Act
also provides that medical direction and management of an EMS
system is under the medical control of the medical director of
the LEMSA.
4)ROLE OF CITY OR FIRE DISTRICT . The EMS Act included a
provision that "grandfathered" the administration of
prehospital EMS by cities and fire districts as of June 1,
1980 and required these rights to be retained until there is a
written agreement regarding the provision of the services
between the LEMSA and the city or fire district, (referred to
as Section 201 rights or administrative control). This bill
repeals and recasts these provisions.
5)EXCLUSIVE OPERATING AREAS . In 1984, the EMS Act was amended
for the purpose of authorizing LEMSAs to grant exclusive
operating areas (EOAs) to private EMS providers such as
ambulance companies (referred to as Section 224). According
to the California Supreme Court, � County of San Bernardino v.
City of San Bernardino (1997) 15 Cal. 4th 909] such
authorization was necessary to immunize the agencies from
liability under a then recent United States Supreme Court's
decision holding that local governments granting monopolies
would not be exempt from federal antitrust laws unless they
acted pursuant to clearly articulated and affirmatively
expressed state policy. AB 3153 (Bronzan) Chapter 1349,
Statutes of 1984, provided that a LEMSA which elects to create
one or more exclusive operating areas must develop and submit
to EMSA for approval, as part of the local plan, its
competitive process for selecting providers. This bill
deletes the provision that was included in AB 3153 stating
that it was not intended to supersede the Section 201 rights.
6)LITIGATION. Section 201 and Section 224 have been the source
of friction between the fire-based providers and LEMSAs, at
times resulting in litigation. The California Supreme Court
first ruled on the respective roles of counties, the LEMSAs,
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cities and fire districts in the 1997 San Bernardino case.
That case arose from a dispute between the City of San
Bernardino and the LEMSA over who controlled the dispatch of
prehospital emergency paramedics and ambulance services. The
court ruled that the City had Section 201 rights to continue
to administer its own prehospital emergency services, but not
to provide ambulance services that it was not providing prior
to the June 1980 "grandfather" date. The court also ruled
that even the city's administrative control was limited by the
LEMSAs medical control authority which included the power to
issue protocols regarding dispatch and patient management. In
order to resolve this dispute, the court conducted an
extensive review of the legislative history as well as a
detailed analysis of the meaning of nearly every phrase.
More recently, the case of County of San Joaquin v. City of
Stockton Superior Court of County of Stanislaus, Case No.
636257, June 3, 2010, the court found that the City of
Stockton had relinquished any grandfathered rights to provide
advanced life saving services by entering into a 1986
agreement and that had been renewed every two years. The
court found that the city's argument that the 1986 agreement
regarding rights and responsibilities pursuant to the EMS Act,
was something other than a 201 agreement, creative but
unconvincing.
7)COMMISSION SUBCOMMITTEE. The tension, debate and court action
led the Commission to appoint a subcommittee in 2010 on this
subject. The subcommittee is composed of representatives of
the California Chapter of the American College of Emergency
Physicians, the Emergency Medical Services Administrators
Association, the California Ambulance Association, the
California Fire Chiefs Association, and the California
Professional Firefighters (CPF). The Subcommittee Report
recommends six specific statutory modifications that are the
substance of this bill.
8)SUPPORT . The CPF, cosponsors of this bill, state that since
the enactment of the Section 201 rights, agencies had
frequently functioned without entering into written agreements
with their respective LEMSAs and argue that while this
approach may work in some jurisdictions, in others it has not.
The sponsors argue that in order to improve upon the shared
goal of a coordinated EMS system that provides the best
possible emergency medical care, it is only appropriate to
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statutorily specify a requirement for written agreements in
this regard, as well as clarify exactly what constitutes a
prehospital EMS provider and that said entities providing
prehospital EMS care are, in fact, subject to LEMSA medical
control.
9)OPPOSITION . The San Joaquin County Board of Supervisors
writes in opposition that this bill would disrupt 30 years of
consistent, integrated, and local EMS planning by creating a
new definition of EMS providers with the ability to provide
patient care services outside of the local EMS planning
process. According to the opposition, this bill proposes to
fix a problem that does not exist. The opposition argues that
the courts have properly fulfilled their role in providing
guidance and direction to the California EMS community.
According to the opposition, this bill attempt to overturn
longstanding legal precedent which provided clarity and
consistency to the EMS planning process. The opposition
further states that specific provisions of this bill
drastically alter the original intent of the EMS Act by
undermining the authority of the local EMS agency to develop
an EMS plan that effectively meets the needs of the people
being service and the local community.
PREVIOUS LEGISLATION .
a) AB 2456 (Torrico) of 2010 would have required the EMSA
guidelines to include model policies, procedures, treatment
protocols, and licensure and certification requirements
applicable to all emergency medical technician (EMT)
personnel and required all LEMSAs to adhere to these
guidelines.
b) AB 2917 (Torrico), Chapter 274, Statutes of 2008,
required EMSA to establish a statewide EMT registry and
develop standards, guidelines, and regulations for
certification of specified EMTs. Establishes rules for EMT
certification and discipline, and for investigation of
conduct which threatens public health and safety, as
defined.
10)POLICY QUESTIONS .
a) Timing . The Commission Subcommittee Report states that
the professional organizations represented in the
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Subcommittee (the EMS Coalition) have committed to work
together in unison on statutory changes that will be
necessary once regulatory language is established.
(Emphasis added). To that end, this coalition of
organizations will work together to identify and secure the
appropriate vehicle, method and timing for moving
legislation forward. This appears to suggest that it was
intended that regulations were planned to be adopted prior
to legislation. The author may wish to explain why this
legislation is now moving ahead of regulations. Does this
represent the full scope of the agreement or is this
intended as a "vehicle" and are additional amendments
contemplated?
b) Resolution of Issues . According to a December 1, 2010
Report of the Subcommittee to the Commission, its
recommendations are intended to address once and for all
the issues surrounding regulatory authority, local control,
and operational control in an EMS system to ensure all
California communities have a fully integrated and
coordinated EMS delivery system. In addition, a standard
set of definitions is included to provide further
clarification of the intent of the proposed statutory
framework as well as assist in a standard definition of
scope, manner, and types of services as they relate to
California EMS systems.
This bill may resolve some of the ambiguities and sources
of conflict. For instance it clarifies the transitional
nature of the grandfathering provisions consistent with the
Supreme Court opinion in the San Bernardino case by
requiring all prehospital EMS providers granted either an
EOA or grandfathered to enter into a written agreement by
December 21, 2103 and clarifies the issue of medical
control. However the new right of any provider to appeal
to the commission may just move many of these disputes from
the court to the Commission. Is the Commission the proper
forum for private disputes regarding contracts and
operating agreements?
c) Legislative Intent . While this bill may resolve many of
the historical issues, there is a potential for litigation
over new issues that may arise from this change in the
statutory formulation. For instance, it is not clear what
the purpose is of repealing the existing Section 201 rights
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provisions and reenacting these along with the other new
provisions. In the San Bernardino Supreme Court decision
regarding the interpretation of existing sections, the
court examined the meaning of every word and phrase such as
the meaning of "until such time as an agreement is
reached." Courts have also looked to the legislative
record. For instance in County of Butte v. California
EMSA , Case No. C060407 (2010) Cal.App 3rd, the court
referred to the Senate Health and Human Services Committee
and Assembly Health Committee analysis. In San Bernardino,
the Supreme Court cited letters to the author of the EMS
Act.
The legislative intent in this bill refers to Section 201
rights. However this bill repeals that section without
explanation. There is no guidance as to how that is to be
interpreted. To avoid future disputes, the author and
sponsors might want to consider supplementing the existing
record with more specificity in the legislative intent
language. Nor do the letters of support and sponsorship
provide any additional elucidation and together with the
supporting information from the Commission subcommittee
suggest that this is only a "vehicle" and that further
amendments may be forthcoming. Finally, in one of the law
suits, the question arose of whether the EMSA's denial of a
LEMSA plan was based on an "underground" regulation. There
is also conflict in the background material with regard to
the possibility of regulations on the subject of this bill.
The author and sponsors may want to add clarification as to
whether regulations are envisioned on particular issues or
whether EMSA is to use its legal view of the statute in
exercising its power.
REGISTERED SUPPORT / OPPOSITION :
Support
California Professional Firefighters (cosponsors)
Emergency Medical Services Administrator's Association of
California (cosponsors)
American Federation of State, County and Municipal Employees,
AFL-CIO
Santa Ana Firemen's Benevolent Association
Opposition
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San Joaquin County Board of Supervisors
Analysis Prepared by : Marjorie Swartz / HEALTH / (916)
319-2097