BILL ANALYSIS Ó
SENATE HEALTH
COMMITTEE ANALYSIS
Senator Ed Hernandez, O.D., Chair
BILL NO: AB 210
A
AUTHOR: Solorio
B
AMENDED: June 29, 2011
HEARING DATE: July 6, 2011
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CONSULTANT:
1
Tadeo
0
SUBJECT
Emergency medical services
SUMMARY
Repeals and recasts provisions in the Emergency Medical
Services (EMS) System and the Pre-hospital Emergency
Medical Care Personnel Act (EMS Act) pertaining to
pre-hospital ambulance services agreements. Requires the
continued authorization of a city or fire district that has
continuously contracted for or provided pre-hospital EMS
since June 1, 1980, to contract for or provide, with
operational control, the same category of pre-hospital
(EMS) that it has continuously provided during that time,
within the geographical service area that it continuously
served during that time, if the city or fire district makes
a formal written request to the local EMS (LEMSA) agency
prior to January 1, 2014, under specified conditions.
CHANGES TO EXISTING LAW
Existing law:
Establishes the EMS Act for the purpose of providing the
state with a statewide EMS system.
Establishes the EMS Authority (Authority), within the
Health and Human Services Agency, responsible for the
Continued---
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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.
Establishes a 16-member EMS Commission within the Health
and Human Services Agency, and defines duties and criteria
for its members. Ten commissioners are appointed by the
Governor, three by the Senate, and three by the Speaker of
the Assembly.
Authorizes counties to develop an EMS program and designate
a LEMSA responsible for planning and implementing an EMS
system.
Requires the Authority to authorize LEMSAs, review and
approve LEMSA plans for implementation of EMS and trauma
care systems, and provide for a LEMSA to appeal a negative
determination to the EMS Commission.
Allows a LEMSA to create an exclusive operating area (EOA)
in the development of a local plan if a competitive process
is utilized to select the provider.
Defines an EOA to mean an EMS area or subarea defined by
the EMS plan for which a LEMSA restricts operations to one
or more emergency ambulance services or providers of
advanced life support (ALS) or limited advanced life
support (LALS).
Does not require a competitive process if the LEMSA
develops or implements a local plan that continues the use
of existing providers that have continuously provided
services without interruption since January 1, 1981.
Requires a LEMSA which elects to develop an EOA to submit a
plan to the Authority for approval. Requires this plan to
include provisions for a competitive process held at
periodic intervals.
Provides that nothing in the provisions pertaining to the
creation of an EOA supersedes the provisions pertaining to
the grandfathering of administration of pre-hospital EMS by
cities and fire districts as of June 1, 1980.
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Allows an emergency medical care committee to be
established in each county. Requires every emergency
medical care committee to report its observations and
recommendations at least annually to the Authority.
This bill:
Repeals and recasts provisions in the EMS Act pertaining to
pre-hospital ambulance services agreements. Requires a
city or fire district that has continuously contracted for
or provided pre-hospital EMS since June 1, 1980, to have
continuing authorization to contract for or provide, with
operational control, the same category of pre-hospital EMS
within the same geographical area, if the city or fire
district makes a formal written request for recognition to
the LEMSA prior to January 1, 2014, and the following
conditions are met:
The city or fire district has not previously
entered into a pre-hospital EMS administration
agreement; and
The city or fire district enters into a written
agreement with the LEMSA in a form specified by the
LEMSA that addresses only medical control,
coordination of EMS resources, recognition of the
category of pre-hospital EMS, and designation of the
geographical service area.
Prohibits a city or fire district from performing or
contracting for a category of pre-hospital EMS if it fails
to enter into an agreement with the LEMSA by January 1,
2014, or has failed to commence an appeal, unless formally
authorized to do so by the LEMSA, as specified.
Requires that appeals proceed in the following order: first
to the local emergency medical care committee or its
equivalent; then to the governing body of the LEMSA; and
then to judicial review. Requires the standard of appeal
to be de novo, meaning the appeal would have to be
considered anew, as if it had not been heard before and as
if no decision had previously been rendered.
Prohibits a city or fire district that has not continuously
performed, or contracted for a category of pre-hospital EMS
since January 1, 1980, to provide those services in that
category unless formally authorized to do so by the LEMSA,
as specified.
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Requires a LEMSA to include all pre-hospital EMS providers
who comply with these provisions in its local EMS plan.
Specifies the pre-hospital EMS categories as first
responder, dispatch, 911 ambulance transport service, and
inter-facility ambulance service, and provides definitions
for each.
Requires that a pre-hospital provider is not precluded from
increasing the level of service it provides within a
category it has continuously provided since June 1, 1980.
Provides that the bill is not to be construed as permitting
a pre-hospital EMS provider to add a new category of
service that it has not provided continuously since June 1,
1980.
Revises the definition of exclusive operating area, to
exclude providers of ALS or LALS
Allows a LEMSA to create EOAs for emergency ambulance
services, inter-facility transport, or both if a
competitive process is utilized. Allows a LEMSA to
determine the periodic intervals at which a competitive
process for an EOA is held.
Removes the provisions that provide that nothing in the
provisions pertaining to the creation of an EOA supersedes
the provisions pertaining to the administration of
pre-hospital EMS by cities and fire districts as of June 1,
1980.
Requires the emergency medical care committee to be
representative of the EMS system participants.
Requires that nothing in this act shall be construed to
affect, limit, or otherwise invalidate any decision by a
court that interprets and applies the EMS Act (Division 2.2
commencing with Section 1797) of the Health and Safety
Code, as that division read on December 31, 2011.
FISCAL IMPACT
The Assembly Floor analysis of AB 210 states negligible
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direct state impact according to the Assembly
Appropriations Committee.
BACKGROUND AND DISCUSSION
The author states that in the last three decades since the
enactment of the EMS Act and particularly the enactment of
the provisions relating to pre-hospital EMS agreements that
allow for exclusive operating areas, the practice of
pre-hospital medicine has witnessed significant changes and
growth, thereby making it increasingly more important to
have a coordinated EMS system that provides the best
possible emergency medical care. The author further states
that it has become 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.
California's EMS system
The EMS system in California began its development with the
passage of the Wedworth-Townsend Pilot Paramedic Act SB 772
(Wedworth), Chapter 1188, Statutes of 1974). Paramedic
programs began forming throughout the state without regard
to EMS system planning. The first paramedic program was
formed in 1970 in the county of Los Angeles. California
was seen as a leader in EMS, with the utilization of
paramedics in the EMS system. Although most EMS systems
that developed nationwide have been structured with state
involvement and/or standardization, the EMS system in
California evolved at the local level.
Prior to 1981, California did not have a central state
agency responsible for ensuring the
development and coordination of EMS services and programs
statewide. Because of
the manner in which EMS evolved in California, system
management and operation
developed independently from county to county throughout
the state. Each county established its own EMS system
(including protocols, scope of practice, training
standards, etc.) and tailored it to meet the specific needs
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of its geography, economy,
and client population. Though fragmented, these individual
systems worked well as
long as EMS calls were confined within the local
jurisdiction. However, when the services of one county
were required across county lines (e.g., for multi-casualty
incidents, patient transport, or mutual aid), the absence
of common operating procedures and methodologies often
resulted in inconsistency of care. Questions regarding
scope of practice and specific protocols, created
indecision and confusion among responders at the scene.
The EMS Act created the Authority, effective January 1,
1981, and now provides the foundation for EMS in the state.
As the lead agency and centralized resource to oversee
emergency and disaster medical services, the Authority is
charged with providing leadership in developing and
implementing local EMS systems throughout California, and
setting standards for the training and scope of practice of
various levels of EMS personnel. This includes assessing
each EMS area to determine the need for additional
services, coordination and effectiveness of EMS. The
Authority reviews EMS plans submitted by LEMSAs to
determine whether the plans effectively meet the needs of
the persons in the geographical areas served and are
consistent with local coordinating activities as well as
with the guidelines and regulations established by the
Authority.
LEMSAs occupy the second tier of governance under the EMS
Act. California has 32 local EMS systems that provide EMS
for California's 58 counties. (Seven regional EMS systems
comprised of 33 counties and 25 single-county agencies
provide the services.) Regional systems are usually
comprised of small, rural, less-populated counties, and
single-county systems generally exist in the larger and
more urban counties. LEMSAs are required to develop a
formal plan for the system in accordance with the
Authority's guidelines and to submit the plan to the
Authority 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.
The EMS Act includes a provision that "grandfathers" the
administration of pre-hospital EMS by cities and fire
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districts as of June 1, 1980, and requires those rights to
be retained until there is a written agreement regarding
the provision of these services between the LEMSA and the
city or fire district (referred to as Section 201 rights or
administrative control). A city or fire district must
provide pre-hospital EMS during the transitional period of
time before an agreement is reached to integrate into the
local EMS system. In 1984, the EMS Act was amended for the
purpose of authorizing LEMSAs to grant EOAs to private EMS
providers such as ambulance companies (referred to as
Section 224).
Litigation and court rulings regarding conflict in the EMS
system
Section 201 and Section 224 have been the source of
friction between the fire district-based providers and
LEMSAs, at times resulting in litigation. The issues
related to EMS system coordination and the interpretation
of Health and Safety Code Sections 1797.201 and 1797.224
have been addressed by the California Supreme Court in its
opinions contained in the cases of County of San Bernardino
v. City of San Bernardino, 15 Cal. 4th 909 (1997) (the San
Bernardino decision) and Valley Medical Transport v. Apple
Valley Fire Protection District, 17 Cal. 4th 747 (1998)
(the Apple Valley decision). More recently, additional
EMS system guidance was also set forth in the Appellate
Court decision in County of Butte v. California Emergency
Medical Services Authority, 3rd Appellate District Docket #
C060407 (2010) (the Butte County decision).
The California Supreme Court first ruled on the respective
roles of counties, the LEMSAs, cities and fire districts in
the 1997 San Bernardino decision. That case arose from a
dispute between the city of San Bernardino and the LEMSA
over who controlled the dispatch of pre-hospital emergency
paramedics and ambulance services. The court ruled that
the city had Section 201 rights to continue to administer
its own pre-hospital EMS, but not to provide ambulance
services that it was not providing prior to the June 1,
1980 grandfather date. The Court also ruled that even the
City's administrative control was limited by the LEMSA's
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
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detailed analysis of the meaning of nearly every phrase.
The San Bernardino decision noted that "?1797.201 is
'transitional' in the sense that there is a manifest
legislative expectation that cities and counties will
eventually come to an agreement with regard to the
provision of emergency medical services?". The decision
also states that "Nothing in this reference to 1797.201
suggests that cities and fire district are to be allowed to
expand their services, or to create their own exclusive
operating areas." 15 Cal. 4th 922.
The specific Section 201 eligibility criteria are
identified in the San Bernardino and Apple Valley
decisions. In order to be an eligible Section 201 agency,
the agency must meet all of the following:
Be a city or fire district that existed on June 1,
1980.
Be the same entity that existed on the date of the
Section 201 eligibility evaluation.
Provided service on June 1, 1980, at one of these
types: ALS, LALS, or emergency ambulance services.
Operated continuously in the same type of service.
Has not yet entered into a written agreement that
intended or contemplated "integration and
coordination" into the local EMS system, including,
but not limited to ALS, LALS or emergency ambulance
services.
In the case of County of Butte v. California Emergency
Medical Services Authority, the appellate court was asked
to decide whether the Authority has the statutory power to
disapprove a LEMSA's designation of an EOA through the
grandfathering provisions of section 1797.224. Butte
County argued that under section 1797.224, when the LEMSA
continues the use of existing providers operating within
the LEMSA area in the manner and scope in which the
services have been provided without interruption since
January 1, 1981, there is no competitive process to submit
to the Authority for its approval and, therefore, the LEMSA
determination with respect to grandfathering in the
existing providers is not subject to the Authority's review
and approval. The court disagreed, stating "we cannot read
section 1797.224 in isolation; instead, we are required to
read the statute with reference to the entire statutory
scheme so that the EMS Act as a whole may be harmonized and
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retain effectiveness." Butte County, p. 31.
The court concluded that "? the Authority has the statutory
authority to review a local EMS agency's creation of an EOA
as part of the transportation portion of the local EMS
plan, regardless of whether the EOA was created through a
competitive process or grandfathering and then to reject
the local EMS plan if it is not "concordant and consistent
with applicable guidelines or regulations, or both the
guidelines and regulations, established by the Authority."
Butte County, p. 32.
EMS task force
To help resolve the longstanding disputes regarding these
issues, the Authority hosted a stakeholder workshop in May
2010. The EMS Commission also established a subcommittee
to evaluate these issues. In December 2010, the
subcommittee submitted a report and recommendations which
were intended to serve as a road map for further action for
the Authority and the EMS community at large. In response,
the Authority convened a task force consisting of EMS
constituents with knowledge of these issues. The task
force has been meeting on a bi-weekly basis since late
January 2011, and is developing a draft set of regulations
and possible statutory changes to address the same issues
this bill is seeking to address. According to the December
2010 subcommittee report, the regulatory package and
recommended statutory framework were to be considered at
the June 2011 Commission meeting, but consideration of them
has been delayed to September 2011. The language in AB 210
reflects stakeholder input; however not all of the
stakeholders are in agreement with the language in the bill
in its current version.
Prior legislation
AB 3153 (Bronzan), Chapter 1349, Statutes of 1984, provides
that a LEMSA which elects to create an EOA must develop and
submit its competitive process for selecting providers to
EMSA for approval as part of the local plan. Provides that
nothing in the provisions pertaining to the creation of an
EOA supersedes the provisions pertaining to the
administration of pre-hospital EMS by cities and fire
districts as of June 1, 1980.
SB 125 (Garamendi), Chapter 1260, Statutes of 1980,
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establishes the EMS Act for the purpose of providing the
state with a statewide EMS system.
Arguments in support
The California Professional Firefighters (CPF), a
co-sponsor of AB 210, states that agencies with Section 201
rights have frequently functioned without entering into
written agreements with their respective LEMSAs to
coordinate, participate in the local EMS plan, and abide by
standard field protocols. CPF adds that while this
approach may work in some jurisdictions, in others it has
not and this is what has led to expensive litigation over
the proper provision of pre-hospital EMS. CPF contends
that it is appropriate to statutorily clarify the need for
a written agreement, as well as to clarify exactly what
should be contained in that agreement to recognize a city
or fire district's continuing authorization to provide
pre-hospital EMS in its jurisdiction, manage its own EMS
resources and be subject to LEMSA medical control.
Understanding that pre-hospital patient care treatment
protocols and policies regarding emergency medical services
vary by county, and, in order to promote an efficient
delivery of the highest level of patient care and
transport, CPF states that each county should establish and
maintain an Emergency Medical Care Committee (EMCC)
representative of local EMS system participants so that
collaboration among stakeholders is streamlined and
coordinated.
Statement of concern
The EMS Administrator's Association of California (EMSACC),
a co-sponsor of AB 210, states that it does not believe the
current language in AB 210 represents a consensus view by
all stakeholders, despite the coalition's best efforts.
EMSACC adds that it has issues with the language and is
concerned that the American Medical Responders and the
California Ambulance Association are in opposition. EMSACC
contends that this important work has not been completed
and recommends that AB 210 be made a two-year bill.
Arguments in opposition
The California Ambulance Association (CAA) states that the
Authority is hosting a task force which is developing
regulations on the very issues AB 210 addresses, and it is
critical that this work be allowed to continue and be
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completed before additional statutory changes to the EMS
act are made. CAA contends that the best approach is to
defer statutory changes and allow the regulatory process to
continue.
The county of Tulare states that AB 210 changes EMS systems
in every county even though there have been problems in
only a few jurisdictions. The county of Tulare contends
that AB 210 attempts to overturn longstanding legal
precedent which currently provides clarity and consistency
to the EMS planning process in counties. The county of
Tulare adds that this bill unnecessarily removes Section
201 and re-creates it in another form, inviting more legal
challenges to counties.
PRIOR ACTIONS
Assembly Health: 14 - 5
Assembly Appropriations:12 - 5
Assembly Floor: 53 - 20
COMMENTS
1. Suggested technical amendments:
On page 5, line 36, amend as follows:
(EMS) since June 1, 1980, shall continue to have
continuing authorization to
On page 5, line 38, amend as follows:
of prehospital EMS that is it has continuously provided
during that
On page 6, line 35, amend as follows:
or contracted for, a specific category of prehospital EMS
since June 1,
On page 7, line 5, amend as follows:
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shall only include only one or more of the following:
POSITIONS
Support: California Professional Firefighters (co-sponsor)
American Federation of State, County and
Municipal Employees
California Senior Legislature
Santa Ana Firemen's Benevolent Association
Concern: Emergency Medical Services Administrator's
Association of California
(co-sponsor)
Oppose:American Medical Response
California Ambulance Association
San Joaquin County Board of Supervisors
Tulare County Board of Supervisors
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