Grandfathering of Emergency Medical Services Under Section 201 of the Emergency Medical Services Act By Derek Cole*

Reprinted with Permission of the State Bar of California Vol. 37, No. 4 Fall 2014 An Official Publication of the State Bar of California Public Law Section MCLE SELF-STUDY ARTICLE (Check end of this article for information on how to access 1.0 self-study credit.) Grandfathering of Emergency Medical Services Under Section 201 of the Emergency Medical Services Act By Derek Cole* I. INTRODUCTION The Emergency Medical Services System and the Prehospital Emergency Medical Care Personnel Act, 1 or as it is generally known, the EMS Act, comprehensively regulates emergency medical care in California. Enacted in 1980, the Act provides for the creation of emergency medical procedures and protocols, certification of emergency medical personnel, and coordination of emergency responses by fire departments, ambulance transporters, hospitals, and other providers within the emergency medical services ( EMS ) system. One section of the EMS Act that has generated controversy is Health & Safety Code section 1797.201, or as it is more commonly referred to, Section 201. This section is one of two grandfather statutes in the EMS Act. 2 Section 201 gives certain cities and fire districts the ability to continue administration of EMS as they provided when the Inside this Issue Grandfathering of Emergency Medical Services Under Section 201 of the Emergency Medical Services Act By Derek Cole Page 1 Message from the Chair By K. Scott Dickey Page 9 Wendy Patrick Honored as 2014 Public Lawyer of the Year Page 10 Remarks of the 2014 Ronald M. George Public Lawyer of the Year Award Recipient Wendy Patrick By Wendy Patrick Page 11 Community Choice Aggregation An Alternative Way to Providing Electricity Service By Local Government By Greg Stepanicich Page 13 University of San Diego Law School Student Wins Public Law Student Writing Competition Page 19 Leggo My Home Rule: Charter Cities and State Municipal Interference By Catherine Ferguson Page 20 To Ban or Not to Ban: How California Cities and Counties Can Effectively Regulate Oil and Gas Fracking Activity without the Risk of a Total Ban By Dr. Robert H. Freilich & Neil M. Popowitz Page 25 Litigation and Case Law Update By K. Scott Dickey Page 34 Legislative Update By Kenneth J. Price Page 39 Public Law Section Forges Partnerships with California Law Schools to Initiate Panel Receptions with Public Officials and Practitioners By John M. Applebaum Page 42

Act was first adopted. The section states in full: 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. 3 Section 201 was added late in the legislative process that led to passage of the EMS Act. It was included to address concerns some cities expressed about the legislation s potential impact on their authority to continue providing EMS programs they had established. Intended as a temporary and transitional provision, Section 201 is today viewed by some city and firedistrict EMS providers as the source of an important right to exercise control over certain aspects of their EMS programs. This view has occasionally led to tension and in a few instances, litigation with the local EMS agencies that regulate these providers. Because Section 201 has become so significant to the manner in which the EMS Act is administered, this article is intended to provide a summary of the section, both as written and as judicially construed. Section 201 can best be explained by focusing on its five distinct clauses, each of which is explained separately below. Before analyzing these clauses, this article examines the EMS Act s legislative intent, and specifically Section 201 s late emergence in the Act s legislative history. This discussion will provide helpful context for understanding the section s substantive provisions. II. LEGISLATIVE HISTORY AND INTENT With EMS being popularized by television shows like M*A*S*H and Emergency!, 4 the demand for government to provide EMS grew significantly in the late 1960s and especially in the 1970s. By the late 1970s, however, regulation of EMS in California remained haphazard. 5 At the time, state law authorized public agencies to provide ambulance services, 6 but nothing in the law required EMS providers to coordinate or integrate their activities. The Legislature began to seriously consider EMS regulation in late 1978, when Senator John Garamendi introduced SB 125. 2 Initially, Garamendi s bill was modest, addressing training and certification for EMS programs. But the bill underwent a two-year odyssey 7 during which its scope was greatly broadened. In late 1980, when finally enacted, the EMS Act contained 100 provisions in nine separate chapters. The new EMS Act created a two-tiered system of regulation. At the state level, it created the Emergency Medical Services Authority, charged with setting standards for and coordinating EMS activities throughout the state. 8 At the local level, the act created local EMS agencies, or LEMSAs, 9 which serve either a single county or multiple counties. LEMSAs are required to plan, implement, and evaluate an [EMS] system for the territories they cover. 10 Importantly, no party is permitted to provide advanced life support ( ALS ) or limited ALS services unless it is an authorized part of a local system. 11 With its dual layers of regulation, the EMS Act replaced the disjointed system that had previously existed with one that emphasized cooperation at all levels, and between all EMS providers. The Act sought to achieve integration and coordination of EMS throughout the state within an overall system by creating a comprehensive system governing virtually every aspect of prehospital emergency medical services. 12 Concerned about the impact of such comprehensive new regulation, some cities particularly those that had invested significantly in

developing their own EMS programs expressed reservations about the effect the proposed legislation would have on their administration of EMS. In June 1980, the League of California Cities expressed these concerns to Senator Garamendi, writing that the cities primary concern lies with staffing levels, transportation, and system organization and management. 13 As the League explained: [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 ultimately the city council. 14 The League 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. 15 The Legislature responded to these concerns by adding Section 201 to the EMS Act. This new section was intended to remove any doubt that cities that had established EMS programs could continue the services they had been providing before the Act s passage. As the State Supreme Court has observed, [t]he 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. 16 At the same time, the Supreme Court has recognized the section was intended to be transitional. 17 Section 201 evinces a manifest legislative expectation that cities and counties will eventually come to an agreement with regard to the provision of [EMS]. 18 The Court has thus construed Section 201 not as a broad recognition or authorization of autonomy in the administration of emergency medical services for cities and fire districts but [as] essentially a grandfathering of existing emergency medical service operations until such time as these services are integrated into the larger EMS system. 19 Indeed, the Court has observed, 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. 20 As its history demonstrates, Section 201 was intended to fill the gap between the EMS Act s passage and the time in which city and fire-district EMS providers reached agreements with their LEMSAs regarding the EMS they provided. In theory, the notion that Section 201 would be transitional and temporary may have made sense in 1980, when the Legislature considered adopting a comprehensive new scheme for regulating EMS. But in practice, not all cities and fire districts were willing to surrender what they felt were and continue to feel are important rights concerning the control of the EMS they provide. And because the EMS Act left it to these agencies to decide when and more importantly, whether to enter into agreements concerning their EMS, it created a mechanism for grandfathered rights under Section 201 to continue indefinitely, even if that was not intended. III. SECTION 201 S FIVE CLAUSES Section 201 can best be understood with reference to five distinct clauses that appear within its three long sentences and 146 words. Reorganizing these clauses into a more convenient order than they appear in the Act, the clauses separately address the following subjects: (1) which entities qualify as grandfathered providers; (2) when such providers may reduce service; (3) what rights they have to continue service; (4) when they are subject to medical control by LEMSAs; and (5) when and how their grandfathered rights terminate by agreement. Each clause is discussed below in this order. A. Grandfathered Providers At the threshold, it is important to identify who qualifies for grandfathering under Section 201. The section defines these providers as those cities or fire districts 21 that contracted for or provided, as of June 1, 1980, prehospital [EMS] 22 Under the Act, EMS 3

are defined as the services utilized in responding to a medical emergency. 23 Clearly, such services include the providing of basic life support, 24 ALS, 25 and limited ALS. 26 A trial court has also found that emergency medical dispatch the handling of 911 phone calls and relaying of information to responding emergency personnel may also be a type of EMS under Section 201. 27 So long as a city or fire district was providing any of these services as of June 1, 1980 or if it contracted for such services as of that time then it qualifies as a grandfathered provider under Section 201. Case law has established, however, that if a provider ceased providing any such services after enactment of the EMS Act, it cannot resume providing such service under Section 201. 28 Just as with a grandfathered nonconforming use in the zoning context, a grandfathered Section 201 right can be lost through abandonment. B. Reductions in Service Emphasizing that Section 201 was as much about obligating cities and fire districts to continue providing EMS as it was about ensuring their right to continue such services, Section 201 specifies a procedure agencies must follow if they desire to reduce the level of EMS. It states, 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 [in service] is necessary. 29 The type of public hearing Section 201 requires is not specified, but at a minimum should be one that satisfies the public-notice and comment requirements of the Ralph M. Brown Act. 30 Also, no statutory or judicial guidance exists as to when a reduction in service is necessary. But given Section 201 was intended, in part, to protect municipal investments, the term presumably was meant to allow agencies to also reduce services when they conclude the cost of continuing to provide such services is no longer feasible. C. Continuation of Service So long as a city or fire district does not elect to reduce EMS per the previously described clause, Section 201 provides that it shall continue to provide services at least the same level as existed in 1980. Specifically, the section states that until an agreement is reached with a county (this type of agreement is discussed below) 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. 31 Although this is the clause that assures grandfathered cities and districts of their right to continue providing EMS, the clause is phrased in mandatory language, again emphasizing Section 201 is as much an obligation statute as it is one that confers rights. In defining what specific rights grandfathered EMS providers possess, moreover, the key word 4 of this clause is retained. The State Supreme Court has interpreted this word to mean that cities and fire districts may only provide those services they were providing at the time the EMS Act was enacted. As the Court has explained, grandfathered providers can retain only those administrative powers that they already possessed. 32 Thus, while they may increase the level of service they provide such as by increasing staffing or acquiring additional emergency vehicles and equipment they may not add new types of emergency services they were not providing as of 1980. For example, a city that did not provide ambulance service prior to 1980 cannot later claim a right under Section 201 to provide ALS. 33 Those familiar with zoning law will recognize this prohibition as being similar to that which prevents nonconforming uses from expanding to include different types of land uses. D. Submission to LEMSA Medical Control Despite having a right to continue providing EMS, grandfathered providers remain subject to [a] significant constraint placed on [their] administrative discretion. 34 The last sentence of Section 201 states, [n]otwithstanding any provision of this section the provisions of Chapter 5 (commencing with Section 1798) shall apply. This sentence refers to the portion of the EMS Act that requires LEMSAs, under the direction of a medical director, to assert medical control over a local EMS system. 35 Thus, even if grandfathered under Section 201, city and fire districts still must

comply with LEMSA policies that are medical in nature. When is a LEMSA policy a function of its medical-control authority? This question has been the most frequent subject of disagreement concerning the interpretation of Section 201. Unfortunately, no clear line can be drawn between when a particular policy ceases being a medical one, and infringes upon grandfathered rights. But the EMS Act does suggest the line should generally be drawn to favor the assertion of LEMSA control. The Act defines medical control broadly to include policies concerning dispatch, patient destination policies, patient care guidelines, and quality assurance requirements. 36 The State Supreme Court has expounded on the definition, observing, [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. 37 In County of San Bernardino v. City of San Bernardino, 38 the Court applied this rationale to uphold a LEMSA policy concerning how ambulance providers were dispatched in response to emergency calls for service. To prevent a city provider from favoring the dispatching of its own resources in response to medical emergencies, one of the policies at issue required that when public and private responders arrived at an emergency scene at the same time, the first responder would be responsible for patient care. The other policy required that public and private providers be dispatched at the same level of response. The Court found these 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. 39 Consequently, the policies [were] highly relevant to the provision of emergency medical care, affecting the speed and effectiveness of the response. 40 E. Termination of Grandfathered Rights by Agreement When does an EMS provider cease being grandfathered? Considering that the Legislature intended grandfathering to be a temporary status when it enacted the EMS Act, 41 the answer to this question may be surprising. On its face, Section 201 states that a grandfathered provider shall continue to provide EMS until such time that an agreement is reached with its LEMSA. 42 The LEMSA s obligation to enter into this agreement, in turn, does not arise until the grandfathered city or fire district requests an agreement. 43 The answer to when grandfathered status is lost, therefore, depends on the grandfathered provider. The provider loses such status when it asks to enter into an agreement with its LEMSA concerning the EMS it provides. And if it never does so, it arguably may retain its grandfathered status in perpetuity. Surely, the Legislature did not intend this result. Given its expressed intent to promote coordination and integration 5 throughout the EMS system, the Legislature likely did not contemplate that providers would retain grandfathered status nearly three-and-a-half decades after the EMS Act s passage. But whatever the reasons for the continued existence of grandfathered providers today fear of the loss of local control or municipal revenue may be a factor Section 201 clearly left the decision to integrate into local EMS systems for cities and fire districts to make. As to what constitutes an agreement under Section 201, neither the Legislature nor the courts have provided any guidance as to the meaning of that term. The subject was litigated extensively in a trial court, however, resulting in an unpublished but helpful judicial opinion. In County of San Joaquin v. City of Stockton, 44 the Stanislaus County Superior Court considered whether a 1986 agreement between those parties constituted an agreement under Section 201. The Court concluded the parties had entered into such an agreement based on covenants that the city desired to participate in a countywide ALS program, agreed to meet all policies as have been or may be established by the county EMS agency, and authorized that agency to terminate the city s ability to provide ALS in the event of noncompliance. 45 The court accordingly found that upon entry into the agreement, the city s rights under Section 201 had terminated. 46

IV. CONCLUSION Despite the intent that it be a temporary and transitional provision, Section 201 has taken on a greater importance within the overall EMS Act scheme than the Legislature contemplated. In recent years, the affected parties have proposed a variety of legislative fixes to Section 201 to provide greater clarity regarding the rights and obligations of grandfathered providers. Until the Legislature acts on any of these or a compromise proposal, the full integration and coordination the EMS Act seeks to promote may not be achieved. 1 * Derek Cole is a partner with Cota Cole LLP and focuses his practice on municipal law and litigation. He has advised or represented counties, cities, and private parties in a number of matters concerning the Emergency Medical Services Act. Endnotes Health & Saf. Code 1797 et seq. 2 The other grandfathering provision in the EMS Act is Health & Safety Code 1797.224. This section allows local EMS agencies to create exclusive operating areas for EMS providers that have provided services continuously, and in the same manner and scope, as they provided on January 1, 1981. Unlike a Section 201 grandfathered right, a Section 224 right is a discretionary one that a local EMS agency may grant. As Section 224 grandfathered rights could (and should) be the subject of their own article, they are beyond the scope of what is covered here. 3 Health & Saf. Code 1797.201. 4 See Manish N. Shah, MD, The Formation of the Emergency Medical Services System, American Journal of Public Health (March 2006), available at http://www. ncbi.nlm.nih.gov/pmc/articles/ PMC1470509/. 5 County of San Bernardino v. City of San Bernardino (1997) 15 Cal.4th 909, 914. 6 See Gov. Code 54980(b)-(c). 7 County of San Bernardino, supra, at p. 915. 8 Health & Saf. Code 1797.101-1797.105. 9 Health & Saf. Code 1797.200. 10 Health & Saf. Code 1797.204. 11 Health & Saf. Code 1797.178. 12 See County of San Bernardino, supra, 15 Cal.4th at p. 915 ( The Legislature s desire to achieve coordination and integration is evident throughout ). 13 Id. at p. 917. 14 Ibid. 15 Ibid. 16 Valley Medical Transport, Inc. v. Apple Valley Fire Protection Dist. (1998) 17 Cal.4th 747, 758. 17 San Bernardino, supra, 15 Cal.4th at p. 922. 18 Ibid. 19 Valley Medical, supra, 17 Cal.4th at p. 758 (emphasis added). 20 Ibid. (emphasis added). 21 Neither Section 201 nor the EMS Act defines the term fire district. But presumably, the Legislature meant to include those fire districts organized under the Fire Protection District Law of 1961, which was superseded in 1987 by the Bergeson Fire District Law. See Health & Saf. Code 13800 et seq. 22 Health & Saf. Code 1797.201. 23 Health & Saf. Code 1797.72. 24 See Health & Saf. Code 1797.60 (defining basic life support as emergency first aid and cardiopulmonary resuscitation procedures which, as a minimum, include recognizing respiratory and cardiac arrest and starting the proper application of cardiopulmonary resuscitation to maintain life without invasive techniques until the victim may be transported or until advanced life support is available ). 6

25 See Health & Saf. Code 1797.52 (defining ALS to include special services designed to provide definitive prehospital emergency medical care, including, but not limited to, cardiopulmonary resuscitation, cardiac monitoring, cardiac defibrillation, advanced airway management, intravenous therapy, administration of specified drugs and other medicinal preparations, and other specified techniques and procedures administered by authorized personnel under the direct supervision of a base hospital as part of a local EMS system at the scene of an emergency, during transport to an acute care hospital, during interfacility transfer, and while in the emergency department of an acute care hospital until responsibility is assumed by the emergency or other medical staff of that hospital ). 26 See Health & Saf. Code 1797.92 (defining limited ALS to mean special service designed to provide prehospital emergency medical care limited to techniques and procedures that exceed basic life support but are less than advanced life support and are those procedures specified pursuant to Section 1797.171 ). 27 28 29 30 31 32 33 34 35 Statement of Decision, County of San Joaquin v. City of Stockton, Stanislaus Superior Court Case No. CV 379455 (May 7, 2009), 11. Valley Medical, supra, 17 Cal.4th at pp. 758-759. Health & Saf. Code 1797.201. See Gov. Code 54950 et seq. Health & Saf. Code 1797.201. San Bernardino, supra, 15 Cal.4th at p. 929. Id. at p. 934. Valley Medical, supra, 17 Cal.4th at p. 755. See Health & Saf. Code 1798(a) ( 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. ). 36 Health & Saf. Code 1797.220. 37 San Bernardino, supra, 15 Cal.4th at p. 926. 38 15 Cal.4th 909. 39 Id. at p. 926. 40 Id. at p. 927. 41 42 43 44 45 46 Id. at pp. 924-925, emphasis added ( [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. ). Health & Saf. Code 1797.201. Id. Stanislaus Superior Court, Case No. 636257. Statement of Decision, County of San Joaquin v. City of Stockton, Stanislaus Superior Court Case No. 636257 (June 3, 2010), pp. 12-13. Id. Although this decision was appealed, the parties settled the case before the appellate court could decide the case on the merits. This article is available as a complimentary online self-study CLE article for members of the Public Law Section. Visit the members only area at http://members.calbar.ca.gov/sections/publiclaw/ for your coupon code and instructions on how to access the online self-study articles. 7