Can an Arkansas city or county charge residents a flat fee to fund ambulance and emergency medical services?

Plain-English summary

Representative Mary Bentley asked the AG whether Arkansas cities or counties could charge residents a flat fee, paid regardless of whether the resident actually used the service, to fund emergency medical services. The AG separated the question by jurisdiction.

Counties: yes, but with significant procedure. Section 20-13-305 of the Arkansas Code expressly authorizes counties (and only counties) to levy "service charges" for emergency medical services. The charges can be "per capita, per household, or per unit of service basis or a combination of any of these." But the county has to give notice, hold a public hearing, and let residents reject the levy by referendum (per §§ 20-13-303 and -304). The Arkansas Supreme Court approved this scheme in Vandiver v. Washington County, 274 Ark. 561 (1982).

Cities: no. The Ambulance Licensing Act, Ark. Code Ann. § 14-266-101 et seq., does not authorize cities to levy per-resident fees. The broad list of verbs in § 14-266-105(a)(2) ("Establish, own, operate, regulate, control, manage, permit, franchise, license, and contract with…") regulates the providers but does not grant a city the authority to levy per-capita charges on residents. Reading it otherwise would let cities and counties bypass the notice-and-referendum protections of § 20-13-305 by simply citing § 14-266-105 instead, an implied repeal that Arkansas courts disfavor (Sesley v. State, 2011 Ark. 104).

Counties under § 14-266-105 cannot bypass § 20-13-305. Counties were added to § 14-266-105 by Acts 2017, No. 1122. The AG read this as a regulatory authority addition, not as an alternative funding mechanism that would moot the procedural protections.

Joint funding via interlocal agreement: yes, with a limit. The Interlocal Cooperation Act (§§ 25-20-101 et seq.) lets cities and counties enter agreements for joint cooperative action. But the agreement can only exercise powers that each party already has independently. So a city, which cannot levy per-resident EMS fees on its own, cannot acquire that power by joining with a county.

The county intergovernmental cooperation councils under §§ 14-27-101 et seq. are specifically charged with reviewing ambulance and emergency medical services and exploring joint purchasing. Op. 2006-174 had previously addressed an Interlocal Agreement for Emergency Medical Services between Conway County's council and Med-Tech EMS.

Currency note

This opinion was issued in 2019. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: What's a "service charge" under § 20-13-305 versus a "tax"?
A: The statute calls it a service charge, and the funding is dedicated to providing the service. Vandiver upheld a per-household annual fee paid to a private EMS contractor as a § 20-13-305 service charge. Whether a particular charge is a tax or fee under the Arkansas Constitution is a separate question that the AG did not reach.

Q: What if a city wants to fund EMS but can't levy a per-resident fee?
A: The AG didn't lay out the alternatives, but cities can still use general funds, contract with providers, or join with their county under an interlocal agreement where the county uses its § 20-13-305 authority. Sales-tax-funded EMS is also a separate framework not addressed in this opinion.

Q: What about the per-unit-of-service charges in § 14-266-108?
A: Those are charges to the patient receiving the service, not flat fees on all residents. Section 14-266-108(b)(2) explicitly limits service charges and rates under that provision to "per unit of service basis." The opinion uses this restriction as evidence that the legislature did not intend § 14-266-105 to authorize per-resident charges.

Q: Can a county skip the referendum step under § 20-13-305?
A: No. The notice, public-hearing, and referendum-opportunity requirements in §§ 20-13-303 and -304 are statutory prerequisites to levying the service charge. Vandiver treated them as mandatory.

Q: How can two cities, or a city and a county, jointly fund a private EMS contract?
A: Through an Interlocal Cooperation Act agreement. The funding source must be one each party can use on its own. The county can pay its share with § 20-13-305 service charges, sales taxes, or general funds. The city can pay its share with sales taxes or general funds. They cannot pool a per-resident EMS fee neither could levy alone.

Q: What is "implied repeal" and why is it relevant?
A: When two statutes seem to conflict, courts ask whether the later statute "impliedly repealed" the earlier one. The Arkansas Supreme Court has said implied repeals are "strongly disfavored" and only recognized in cases of irreconcilable conflict, Sesley v. State, 2011 Ark. 104. The AG read § 14-266-105 narrowly to avoid implying a repeal of the §§ 20-13-303 and -304 procedural protections.

Background and statutory framework

Two state-law tracks for EMS funding existed when this opinion was written:

1. County-specific track (§§ 20-13-303 to -305). Counties may levy service charges to finance EMS after notice, hearing, and referendum. Charges can be per capita, per household, per unit of service, or a combination.
2. Ambulance Licensing Act (§§ 14-266-101 et seq.). Authorizes cities of the first and second classes, and (after 2017) counties, to "establish, own, operate, regulate, control, manage, permit, franchise, license, and contract with" emergency medical services. The list includes rates, fees, charges, and other assessments. The AG read this as regulatory authority over providers, not as a per-resident taxing authority.

The Interlocal Cooperation Act (§§ 25-20-101 et seq.) lets public agencies pool joint authority. The key limit in § 25-20-104(a) is "powers, privileges, or authority exercised or capable of exercise by a public agency of this state alone may be exercised and enjoyed jointly with any other public agency of this state which has the same powers, privileges, or authority under the law."

The county intergovernmental cooperation councils under §§ 14-27-101 et seq. are an organizational structure for joint review of ambulance services and other shared functions.

Citations

• Ark. Code Ann. § 14-266-101 et seq. (Ambulance Licensing Act)
• Ark. Code Ann. § 14-266-105, 105(a)(2) (regulatory authority)
• Ark. Code Ann. § 14-266-108(b)(2) (per-unit-of-service charges)
• Ark. Code Ann. §§ 20-13-303 to -305 (county EMS service charges; notice, hearing, referendum)
• Ark. Code Ann. § 20-13-305(b)(1) (per capita, per household, per unit of service)
• Ark. Code Ann. §§ 14-27-101 to -104 (intergovernmental cooperation councils)
• Ark. Code Ann. § 25-20-101 et seq. (Interlocal Cooperation Act)
• Ark. Code Ann. § 25-20-104(a) (each party must have the underlying authority)
• Ark. Code Ann. § 17-20-208(a); § 17-50-311(a), (c) (regulatory licensing fees, by analogy)
• Acts 2017, No. 1122
• Vandiver v. Washington Cty., 274 Ark. 561, 628 S.W.2d 1 (1982)
• Sesley v. State, 2011 Ark. 104, 380 S.W.3d 390

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

Opinion No. 2018-081
July 5, 2019

The Honorable Mary Bentley
State Representative
142 Shady Lane
Perryville, AR 72126-8103

Dear Representative Bentley:

This is in response to your request for an opinion on the financing of emergency services. You have posed the following two questions:

1) May a city or county impose a fee on residents in order to provide emergency medical services under the Ambulance Licensing Act, Arkansas Code Annotated § 14-266-105, or under any other legal theory?
2) May cities and counties enter into agreements in order to fund joint emergency medical services with a private emergency medical service provider?

RESPONSE

In response to your first question, it is my opinion that neither a city nor county may impose a fee on residents in order to provide emergency medical services under Ark. Code Ann. § 14-266-105 (part of the Ambulance Licensing Act), but a county may impose a fee on residents to provide emergency medical services under Ark. Code Ann. § 20-13-305.

The precise focus of your second question is somewhat unclear. Counties and cities plainly have the power to jointly purchase emergency medical services. But if your second question is focused more narrowly on the means of funding such services, then it must be recognized, as explained more fully below, that cities and counties can only do jointly what either of them would be authorized to do independently.

DISCUSSION

Question 1: May a city or county impose a fee on residents in order to provide emergency medical services under the Ambulance Licensing Act, Arkansas Code Annotated § 14-266-105, or under any other legal theory?

In asking whether cities or counties can "impose a fee on residents" in order to finance emergency medical services, I take it that by "fee" you mean an exaction that residents would pay regardless of the amount of emergency medical services they happen to individually use.

Section 20-13-305 of the Arkansas Code specifically provides that counties, and only counties, may levy fees, called "service charges," to finance emergency medical services. The charges may be "per capita, per household, or per unit of service basis or a combination of any of these." But a county wishing to levy charges under this statute must satisfy certain procedural requirements involving notice, a public hearing, and an opportunity for county residents to reject the levy by referendum.

The first half of your question concerning the levying of fees under the Ambulance Licensing Act presents a somewhat more difficult issue. You have called attention to Ark. Code Ann. § 14-266-105, which provides in relevant part that counties and cities of the first and second classes may:

Establish, own, operate, regulate, control, manage, permit, franchise, license, and contract with, exclusively or otherwise, emergency medical services, ambulances, ambulance companies, and their relative properties, facilities, equipment, personnel, and any aspects attendant to emergency medical services and ambulance operations, whether municipally owned or otherwise, including without limitation:
(A) Rates;
(B) Fees;
(C) Charges; and
(D) Other assessments the cities and counties consider proper to provide for the health, safety, and welfare of their citizens[.]

This broad language in section 14-266-105(a)(2) could be read to authorize cities and counties to levy any emergency medical services fee that they "consider proper to provide for the health, safety, and welfare of their citizens." But I do not read it to authorize cities and counties to levy fees of the kind I understand your question to address.

First, it is not at all clear that section 14-266-105(a)(2) grants cities and counties authority to levy "[f]ees," "[c]harges," and "[o]ther assessments the cities and counties consider proper[.]" The statute does not use the word "levy," or any synonym thereof. The only word in the long list of verbs in the opening language that can arguably be interpreted to grant cities and counties the authority to levy their own fees, as opposed to regulating those of providers, is "[e]stablish." But that is an awkward word to use had the General Assembly intended to grant authority to levy fees. Typically, the authority to "establish fees" applies in the context of fees paid by some regulated industry for licenses or services rendered, not fees for services levied on the general public. In my opinion, section 14-266-105 is best read not to grant cities and counties the authority to "establish" fees, but only to "regulate" or possibly "control" them.

Second, the wording of section 14-266-105(a)(2) is in stark contrast to another section of the Ambulance Licensing Act specifically addressed to financing. That provision, section 14-266-108, provides for "service charges and rates levied ... on a per unit of service basis[.]" It seems doubtful that the General Assembly would go to the trouble of mandating that service charges and rates under section 14-266-108 be assessed only on a per unit of service basis, but allow cities and counties to evade that mandate by imposing per-resident fees pursuant to the vague grant of authority under section 14-266-105 with respect to "[f]ees" and "[o]ther assessments."

Finally, the General Assembly clearly expressed its intent under Ark. Code Ann. § 20-13-305, the county-specific emergency services law noted above, to grant counties the authority, subject to procedural protections, to assess per capita or per household service charges. Had it intended to grant this authority under the Ambulance Licensing Act, that intent could easily have been expressed. Moreover, to conclude otherwise would mean that the procedural prerequisites to counties levying such fees under section 20-13-305, which do not appear in the Ambulance Licensing Act, could be circumvented by levying fees under section 14-266-105(2). In essence, this would mean that counties' addition to the Ambulance Licensing Act in 2017 worked an implied repeal of sections 20-13-303 and 20-13-304's procedural requirements. Implied repeals are "strongly disfavored" and they are only recognized in cases of irreconcilable conflict or instances where the legislature enacts a new law "clearly ... intended as a substitute for the former provision." There is no irreconcilable conflict between the Ambulance Licensing Act and the county-specific emergency services law on this score, because, as explained above, the Ambulance Licensing Act can be read not to authorize the imposition of per capita fees.

It is, therefore, my opinion that neither a city nor county may impose a fee on residents in order to provide emergency medical services under the Ambulance Licensing Act. But a county may impose a fee on residents to provide emergency medical services under Ark. Code Ann. § 20-13-305.

Question 2: May cities and counties enter into agreements in order to fund joint emergency medical services with a private emergency medical service provider?

Each county has a "county intergovernmental cooperation council" formed pursuant to Ark. Code Ann. § 14-27-102, which appears designed to encourage interlocal cooperation in the provision of services:

There is established within each county of this state a county intergovernmental cooperation council to facilitate cooperation among all the local government subdivisions of each county, to encourage the efficient use of local government resources, and to eliminate the duplication of services by local governments.

Among the tasks statutorily charged to each such council is the power to "[e]xplore the use of joint purchasing and buying agreements to purchase goods and services in an effort to achieve economies of scale that would not be possible without mutual cooperation." The council is further expressly charged with periodically reviewing "[a]mbulance and emergency medical services" within the county.

County intergovernmental cooperation councils, therefore, are supposed to consider negotiating joint purchases of services, including emergency medical services. This might result in a service contract between a council and a private entity for the provision of emergency medical services.

While it is not entirely clear from its wording, your second question might be concerned more specifically with funding such a service contract. In that case, reference should be made to the Interlocal Cooperation Act, codified at Ark. Code Ann. § 25-20-101 et seq. This Act authorizes agreements between cities and counties (and other "public agencies") for "joint cooperative action."

Importantly, however, cities and counties can only jointly exercise those powers and privileges that they are independently capable of exercising:

Any governmental powers, privileges, or authority exercised or capable of exercise by a public agency of this state alone may be exercised and enjoyed jointly with any other public agency of this state which has the same powers, privileges, or authority under the law....

Cities and counties might, therefore, enter into an Interlocal Cooperation Agreement to jointly fund emergency medical services. But each party to the agreement must have the power to independently undertake whatever method of funding is agreed upon.

Sincerely,

LESLIE RUTLEDGE
Attorney General