Request By:
Mr. John McNeill
Law Clerk
Lexington-Fayette Urban County Government
Municipal Building
136 Walnut Street
Lexington, Kentucky 40507
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
The Lexington-Fayette Urban County Government requests an opinion from this office regarding the ability of local governmental units to enact ordinances regulating private ambulance services in the light of recent amendments to KRS Chapter 216B. Your local government is concerned that the changes in that chapter, 216B, in 1982 (Senate Pill 300), are so expansive as to constitute a legislative preemption of the field of ambulance services from any local control.
Question No. 1 reads:
"Whether KRS Chapter 216B is intended to control the field of ambulance service regulation and thereby preclude local governmental units from enacting ordinances in this field?"
You say Urban County Government is currently considenting enacting an ordinance regulating ambulance services in Fayette County, thus this request for an opinion.
Under the original (1980) provisions of KRS 216B.-020(2), "The provisions of this chapter shall not apply to ambulances, ambulance service, or the providing thereof when a county, through appropriate action of the fiscal court, has elected not to be covered by the provisions of this chapter." (Emphasis added.)
The 1982 amendment to KRS 216B.020 deleted the provisions permitting counties to elect to not be covered by KRS Chapter 216B. However, KRS 216B.020(1), as amended in 1982, provides that the provisions of the chapter that relate to the issuance of a certificate of need shall not apply, inter alia, to ambulance services. A "certificate of need" is defined as an authorization by the Kentucky Health Facilities and Health Services Certificate of Need and Licensure Board to proceed to acquire, to establish, to offer, to substantially change the bed capacity or to substantially change a health service as covered by Chapter 216B. See KRS 216B.061, concerning when a certificate of need is required.
Also, subsection (2) of that statute exempts from the chapter as relates to the licensure, supervision, regulation or control in any manner of on-duty police and fire department personnel assisting in emergency situations by providing first-aid or transportation when regular emergency units licensed to provide first-aid or transportation are unable to arrive at the scene of an emergency situation within a reasonable time.
KRS 216B.010, as amended in 1982, relating to legislative purposes, reads:
"The general assembly finds that the licensure of health facilities and health services is a means to insure that the citizens of this Commonwealth will have safe, adequate and efficient medical care; that the proliferation of unnecessary health care facilities, health services and major medical equipment results in costly duplication and underuse of such facilities, services and equipment; and that such proliferation increases the cost of quality health care within the Commonwealth. Therefore, it is the purpose of this chapter to provide for the establishment of the Kentucky health facilities and health services certificate of need and licensure board for the purpose of licensing health facilities and services, and acting on applications for certificates of need."
Thus the effect of the new legislation has been to preempt the field of licensure standards and licensing procedures and regulations relating thereto, and other provisions of Chapter 216B not related to a certificate of need, which affect ambulance service. See KRS 216B.040(1)(c) and (d), (2)(a), 3. a., b., c., d., (3)(a)(b)(c)(d)(e). See KRS 216B.105, relating to licensing procedures, and 216B.115, concerning appeals to Franklin Circuit Court from decisions of the Board respecting a license.
Our conclusion at this point is based upon these major considerations: (1) the literal language of the applicability statute, KRS 216B.020; (2) the sheer legislative fact of deleting in 1982 the option of local governments to opt out from under the application of KRS Chapter 216B; (3) the nature and range of legislative purpose declared in KRS 216B.010; and (4) the very detailed legislative treatment of the licensure of health facilities and services area.
Question No. 2 reads:
"If KRS Chapter 216B does not preempt the field of ambulance service regulation, must a local ambulance ordinance still meet the standards issued by the Bureau of Health Services Certificate of Need and Licensure Board pursuant to KRS 216B.040(2)(a), (3)(a)(c) or 902 KAR 20:115?"
As we pointed out above, KRS Chapter 216B preempts the field of ambulance service regulation as concerns licensure and other chapter regulations not dealing with a certificate of need.
Under the express provisions of KRS 216B.020(1), the chapter's treatment of certificates of need has no application to ambulance services.
Question No. 3 reads:
"Whether KRS 216B.020(1), which excuses ambulance services from state certificate of need requirements, additionally precludes local governmental units from establishing local certificate of need criterias for licensing ambulance services?"
KRS 216B.020(1) specifically excepts the issuance of certificates of need as applied to ambulance services. However, the "certificate of need" concept, as defined in KRS 216B.015(7), narrowly relates to Chapter 216B. Note that in order to understand the language of KRS 216B.015(7), relating to "certificate of need," resort must be had to subsection (27), relating to "to acquire, " to subsection (29), relating to "to establish," subsection (31), relating to "to offer," subsection (26), relating to "substantial change in bed capacity," subsection (25), relating to "substantial change in a health service, " and subsection (14), relating to "health services. " Since subsection (29) defines "to establish" as meaning to construct, develop, or initiate a health tacility," the term "health facility" is defined in subsection (11) in part as any institution, place, building, agency, public or private, whether organized for profit or not, used operated or designed to provide medical diagnosis, treatment, nursing, etc. This includes ambulance services.
Thus, a local government, including urban county government, may by ordinance treat any facet of the "certificate of need" concept which may be practically applied to ambulance service, and which treatment is authorized by statute (see KRS 67A.060, 67.080, 67.083(3)(d), and § 164, Kentucky Constitution). See also