EMS Cost Recovery by Volunteer Fire Departments – An Overview of the New Law

By Timothy Hannigan, FASNY General Counsel

FASNY has long advocated for an amendment to the law to allow fire departments to engage in cost recovery (billing) for ambulance services provided by a fire department or fire company. We are pleased to report that, in partnership with the New York State Association of Fire Chiefs and the Association of Fire Districts of the State of New York, FASNY’s goal of achieving authorization for fire service entities to bill was realized through legislation passed in connection with the 2022-23 New York State Budget. The bulk of the applicable changes from this legislation are codified at General Municipal Law § 209-b (4).

The following is intended to provide FASNY members with a brief overview of the law. To be sure, obtaining permission to provide ambulance service and the actual delivery of ambulance service is subject to its own statutory scheme and regulation by the New York State Department of Health, a process which is not fully described here. Further, there are a host of employment law issues, including compliance with the Federal Fair Labor Standards Act, that may apply to your agency should your service be part-paid, part volunteer. Those topics, which are unique to each agency, should be addressed to competent local legal counsel.

FASNY members are also encouraged to watch the “EMS Cost Recovery Seminar” hosted by FASNY on April 22, 2022 for additional information from our panel of experts on the subject. A recording of the seminar is available to FASNY members. The panelists discussed a wide variety of topics related to EMS billing and employment/operational matters applicable to the implementation of Fire Department billing.

When does the new law take effect?

July 8, 2022. No bills for fire department or fire company-based EMS service can be issued until this date.

Does the new law expire?

Yes. As presently written, the ability for fire departments and fire companies to bill expires on April 9, 2026. Absent some further extension or a permanent enactment of the law, fire departments and fire companies will not be able to bill after this date.

Are all volunteer Fire Departments now required to operate an ambulance service and charge for service?

No, there is no requirement that a Fire Department start operating an ambulance service. An existing fire-department-based ambulance service is not required to charge for service.

It bears mentioning that, in order to operate an ambulance service, the operator must first have a valid Certificate of Operating Authority issued from the New York State Department of Health under Article 30 of the Public Health Law. An ambulance service cannot operate without prior approval from the Department of Health.

My Fire Department has a Certificate of Need/Certificate of Operating Authority from the Department of Health and runs an ambulance service – what are the next steps?

Get permission to operate from the authority having jurisdiction (“AHJ”) over the Fire Department or Fire Company – a Town Board, Village Board, or Fire District Board of Fire Commissioners. In most cases, this has already occurred, because fire-based ambulance services are already operating.

Nevertheless, the AHJ is in control. If fees are going to be charged for service, the law requires a written contract between the AHJ and the Fire Department or Fire Company. The AHJ may provide for the collection of fees for itself in that contract. Conversely, the AHJ can establish rules and regulations in a contract authorizing the collection of EMS charges by the fire department or fire company. The AHJ should also approve a schedule of charges prior to any charge to service recipients.

If your agency intends to bill Medicare or Medicaid, strict compliance with all plan enrollment and billing requirements applicable to such services prior to submission of bills for reimbursement is required. Your agency must familiarize itself with the federal Anti-Kickback Statute, which prohibits offering, paying, soliciting, or receiving remuneration to induce referrals of items or services covered by Medicare, Medicaid, and other federally funded programs.

Our Fire Department has satisfied all prerequisites to operating an ambulance service stated above, and will operate at the Basic Life Support (BLS) level only. Is there anything else we need to do?

Enter into a contract with a provider(s) of Advanced Life Support (“ALS”) services to provide such services as necessary. The law requires that a contract between your BLS Agency and an ALS agency establish the fees to be charged for ALS services and the means by which the ALS provider will be reimbursed when the ambulance service bills for emergency medical service.

Our Fire Department is in a designated rural area, has satisfied all pre-requisites to operating an ambulance service stated above, will operate at the Basic Life Support (BLS) level only, and will not charge. Is there anything else we need to do?

The law puts the onus on your BLS entity to pay an ALS provider(s) an “ALS Rural Intercept Fee” at rates negotiated between the entities. If there is no previously agreed upon rate for the ALS Rural Intercept Fee, the BLS service receiving the ALS intercept is required to pay “at the usual and customary charge, which shall not be excessive or unreasonable”. A BLS entity in this situation should identify suitable ALS providers and negotiate an agreed-upon rate ahead of time to avoid an expensive – albeit reasonable – charge from the ALS provider.

Can an individual firefighter accept a monetary gratuity from an ambulance service patient for a job well done?

No, the acceptance of any personal remuneration or gratuity, directly or indirectly, by any firefighter from a person served is “ground for his or her expulsion or suspension as a member of the fire department or fire company”. This is a holdover from the existing statute, but bears mentioning given that it remains in the newly revised version that takes effect on July 8.

My Fire Department does not have a Certificate of Operating Authority from the Department of Health, and does not operate an ambulance service. Can we bill for responding to fire calls under this new law?

No. There is no authority granted under the law that allows for billing for “fire calls” like structure fires, motor vehicle accidents, alarm drops, or other “smells and bells” calls. The new law applies only to billing for ambulance service and emergency medical service provided by a Fire Department or Fire Company.

Timothy C. Hannigan, Esq. serves as General Counsel to FASNY, and is a volunteer firefighter with the Elsmere Fire Company, Inc. in Delmar, New York. He can be reached at www.hannigan.law. Please note that the information contained herein does not establish an attorney-client relationship between the author and the reader. Matters addressed are for information purposes only and the reader should seek advice from competent local counsel in regard to acting on any matters addressed herein.