Do unpaid volunteers serving on New York's regional EMS councils and medical advisory committees get state-paid legal defense and indemnification if they are sued for committee work?

Plain-English summary

New York's regional emergency-medical-services system runs through two layers of volunteer-staffed entities. Regional Emergency Medical Services Councils (REMSCOs) are designated by the state Commissioner of Health, with State EMS Council approval, from local organizations representing ambulance services, hospitals, physicians, fire-rescue squads, and the public. Each REMSCO coordinates emergency medical care in its geographic region, certifies EMTs, decides public need for new ambulance services, and grants compliance exemptions in narrow circumstances. Regional Emergency Medical Advisory Committees (REMACs) are physician-led bodies, with REMSCO approval, that write the triage, treatment, and transportation protocols ambulance crews follow.

The Commissioner of Health asked the AG whether these volunteer council and committee members were "employees" for purposes of state-paid defense and indemnification under Public Officers Law § 17. The concern was practical: people will not serve on these boards if a lawsuit can wipe out their savings.

The AG concluded yes. Section 17 defines "employee" as any person holding a position by election, appointment, or employment in state service, whether or not compensated. REMSCOs are designated by the Commissioner with State EMS Council approval; REMAC members are approved by REMSCOs. Both bodies carry out statutory duties promoting effective emergency care across the state. The AG analogized to its 1989 Formal Opinion 89-F2 covering Local Emergency Planning Committees under the federal Superfund Law, which similarly held that locally drawn members exercising delegated state functions are in state service.

Two additional details. The opinion preserves Public Health Law §§ 3003(9) and 3004-a(3), which require leave of a supreme court justice before any civil action is filed against a REMSCO or REMAC member, officer, or employee, and shield those individuals from damages if they acted in good faith with reasonable care and probable cause. And the county EMS coordinator, who sits ex officio on the REMSCO, gets defense and indemnification from the county rather than from the state.

Currency note

This opinion was issued in 1996. 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

What kinds of decisions could expose a REMSCO or REMAC member to a lawsuit?

REMSCOs make public-need determinations on new ambulance services and grant compliance exemptions. REMACs write the triage and treatment protocols crews follow on every call and approve which physicians can give on-line medical control. An ambulance service denied a public-need determination, a physician removed from approved on-line medical control, or a patient injured under a protocol could all attempt suits.

Is the § 17 protection automatic the moment a person is appointed?

Section 17 contains procedural requirements that have to be followed for coverage to attach, including timely written notice to the Attorney General of any action commenced. The opinion does not change those mechanics. It simply confirms eligibility as a threshold matter.

What about the supreme-court-leave requirement?

Public Health Law §§ 3003(9) and 3004-a(3) require a prospective plaintiff to obtain leave from a justice of the supreme court before any civil action against a REMSCO or REMAC member, officer, or employee. The AG's opinion did not eliminate that filter, it sits in addition to § 17 coverage. And those statutes shield members, officers, and employees from damages where they acted in good faith with reasonable care on probable cause.

Why does the county cover the ex officio EMS coordinator instead of the state?

The county emergency medical services coordinator is a county officer who holds a REMSCO seat ex officio by virtue of that county position. The opinion treats the responsibility for indemnification as following the underlying office; for the coordinator, that office is at the county.

How does this compare to the 1989 Local Emergency Planning Committee opinion?

In Formal Opinion 89-F2, the AG covered local emergency planning committees formed under the federal Superfund Law because they were appointed by the State Emergency Response Commission and were carrying out a statutory function. The same logic carried over: state designation of the entity, statutory duties promoting a public purpose, and integration into a statewide system together put members "in the service of the state" for § 17 purposes.

Background and statutory framework

Public Health Law § 3003(1) directs the Commissioner of Health, with State EMS Council approval, to designate REMSCOs from local applications. REMSCOs have 15 to 30 members, at least one third of whom must represent ambulance services, with the remainder drawn from local EMS committees, physicians, nurses, hospitals, health-planning agencies, fire-department emergency rescue squads, public health officers, and the general public. The county EMS coordinator is an ex officio member. Members must reside in the geographic area served.

REMSCOs are authorized under § 3003(3) to acquire property, contract for employment, retain consultants, undertake studies, accept gifts and grants, develop annual emergency medical training plans, recommend training course sponsors, and coordinate regional EMS programs. Under § 3003(5), REMSCOs make determinations of public need for new emergency medical services and ambulance services. Under § 3003(5-a), they grant compliance exemptions to qualifying voluntary ambulance services.

REMACs, under §§ 3001(16) and 3003(1), are composed of five or more physicians plus nonvoting representatives of hospitals, basic and advanced life support providers, and EMS training-sponsor medical directors. Under §§ 3002-a(2) and 3004-a(1), REMACs develop state-standard-consistent triage, treatment, and transportation protocols addressing local conditions, approve physicians for on-line medical control, and participate in quality improvement.

Public Officers Law § 17 covers state "employees," defined broadly to include compensated and uncompensated persons holding state positions by election, appointment, or employment. Defense and indemnification cover civil actions arising from acts within the scope of duty, with statutory exclusions for actual malice and certain other circumstances.

Citations

• Public Health Law §§ 3001, 3002-a, 3003, 3004-a, governing REMSCOs and REMACs and their authority, plus the supreme-court-leave provision and good-faith shield.
• Public Officers Law § 17, providing defense and indemnification for state employees.
• Formal Opinion No. 89-F2, the AG's prior conclusion that members of Local Emergency Planning Committees (federal Superfund) are state employees for § 17 purposes.

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/96-F9_pw.pdf

Original opinion text

PUBLIC HEALTH LAW §§ 3001, 3002-a, 3003, 3004-a; PUBLIC OFFICERS
LAW § 17.
Members of Regional Emergency Medical Services Councils and
Regional Emergency Medical Advisory Committees are eligible to
receive defense and indemnification under section 17 of the
Public Officers Law.
August 1, 1996
Hon. Barbara A. DeBuono
Commissioner
NYS Department of Health
Corning Tower
Empire State Plaza
Albany, NY 12237

Formal Opinion
No. 96-F9

Dear Commissioner DeBuono:
You have requested a formal opinion as to whether members of
Regional Emergency Medical Services Councils (REMSCOs) and
Regional Emergency Medical Advisory Committees (REMACs) are
entitled to defense and indemnification under section 17 of the
Public Officers Law.
The Commissioner of Health, with the approval of the State
Emergency Medical Services Council (Council), is responsible for
designating REMSCOs throughout the State from applications by
local organizations knowledgeable in various aspects of emergency
medical services. Public Health Law § 3003(1). Applications
describe the geographic area to be served, must include a list of
nominees for appointment to membership and a statement as to the
proposed method of operation in such detail as is prescribed by
the Commissioner with the approval of the Council. Id.,
§ 3003(1). REMSCOs are comprised of at least 15 but not more
than 30 members nominated by the local organizations and are
initially appointed by the Commissioner with the approval of the
Council. Id., § 3003(2). Once established, REMSCOs may make
by-laws for their organization and internal management. Id.,
§ 3003(3)(c). Not less than one-third of the membership must be
representatives of ambulance services and the remaining members
are to include representatives of existing local emergency
medical care committees, physicians, nurses, hospitals, health
planning agencies, fire department emergency rescue squads,
public health officers and the general public. Id., § 3003(2).
The county emergency medical service coordinator is an ex officio
member of the REMSCO. Id., § 3003(2). Members of REMSCOs must
be residents of the geographic area served by the council. Id.,
§ 3003(2). Upon the request of a REMSCO, the Commissioner of

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Health may assign employees of the Department to the council,
including an officer or employee to act as secretary. Id.,
§ 3003(8).
REMSCOs are empowered to acquire real and personal property;
enter into contracts for employment of officers and employees and
fix their qualifications, duties and compensation; retain and
employ personnel; engage private consultants for provision of
professional or technical services and advice; undertake plans,
surveys and studies desirable for the effectuation of its powers;
and contract for and accept gifts, grants and other financial aid
from any source, including the Federal or State government. Id.,
§ 3003(3). REMSCOs are authorized annually to develop,
promulgate and implement emergency medical services training
plans which address the needs of their regions. Id.,
§ 3003(3)(i). They recommend to the Department of Health
approval of training course sponsors in the area. Id. They
coordinate emergency medical services programs within their
regions, including the establishment of emergency medical
technician courses and the issuance of uniform emergency medical
technician insignia and certificates. Id., § 3003(4). REMSCOs
make determinations of public need for the establishment of
additional emergency medical services and ambulance services.
Id., § 3003(5). They are authorized to grant exemptions from
staffing standards to voluntary ambulance services operating
solely with enrolled members or paid emergency medical
technicians, which have demonstrated a good faith effort to meet
the standards but are unable to for reasons deemed appropriate by
the REMSCO. Id., § 3003(5-a). Exemptions are conditioned on
participation of the voluntary ambulance service in a program to
achieve compliance, which includes technical assistance and
support from the REMSCO. Id. We note also that
No civil action shall be brought in any
court against any member, officer or employee
of any designated regional council for any
act done, failure to act, or statement or
opinion made, while discharging his duties as
a member, officer or employee of the regional
council, without leave from a justice of the
supreme court, first had and obtained. In
any event such member, officer or employee
shall not be liable for damages in any such
action if he shall have acted in good faith,
with reasonable care and upon probable cause.
Id., § 3003(9).

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Thus, REMSCOs are designated by the Commissioner of Health
with the approval of the State Emergency Medical Services Council
(created in the Department of Health [id., § 3003(1)]) and have
been granted specific powers under State law relating to the
training, assisting and certifying of emergency medical services
and voluntary ambulance services.
Regional Emergency Medical Advisory Committees (REMACs) are
comprised of a group of five or more physicians, and one or more
non-voting individuals representative of each of the following:
hospitals, basic life support providers, advanced life support
providers and emergency medical services training sponsor medical
directors. Nominees are approved by the affected REMSCOs. Id.,
§§ 3001(16), 3003(1). Among a REMACs' responsibilities are the
development of triage, treatment and transportation protocols
which are consistent with State-wide standards (id.,
§ 3002-a[2]), and which address specific local conditions. Id.,
§ 3004-a(1). They may approve physicians to provide on-line
medical control, coordinate the development of regional medical
control systems, and participate in quality improvement
activities addressing system-wide concerns. Id. Hospitals and
other medical care providers may release patient outcome
information to REMACs so they may assess pre-hospital care. Id.
REMACs transmit nominations of physicians experienced in
emergency care to the Commissioner of Health to serve on the
State Emergency Medical Advisory Committee. Id., § 3004-a(2).
Decisions of REMACs regarding the level of care, including
staffing requirements, may be appealed to the Committee (see,
id., § 3002-a[2]) by any REMSCO, ambulance service, emergency
medical technician, and others. Id., § 3004-a(4).
Thus, REMACs develop triage, emergency treatment and
transportation protocols addressing local conditions and
consistent with State-wide standards. These duties are delegated
by statute and promote the provision of effective emergency care
within the REMAC's jurisdiction. Their members are approved by
REMSCOs, which are organizations designated by the Commissioner
of Health with the approval of the State Emergency Medical
Services Council. The above-quoted language relating to
liability of members of REMSCOs also has been applied to members
of REMACs. Id., § 3004-a(3).
Section 17 of the Public Officers Law provides for defense
and indemnification of any State "employee", defined as "any
person holding a position by election, appointment or employment
in the service of the state, whether or not compensated . . .".
Public Officers Law § 17(1)(a).
In our view, members of REMSCOs
and REMACs are employees within the meaning of section 17 and are
eligible to receive defense and indemnification.

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In a 1989 opinion (No. 89-F2), we concluded that local
Emergency Planning Committees are covered by section 17. Under
the Federal Superfund Law, the Governor established a State
Emergency Response Commission which in turn established emergency
planning districts throughout the State. Local Emergency
Planning Committees were appointed by the State Emergency
Response Commission to serve each local planning district. These
local committees included representatives of State and local
government, law enforcement personnel and other members of the
community, including community groups. The local Emergency
Planning Committees were given two main functions--the
identification of hazardous materials and their use within the
region and the preparation and implementation of a comprehensive
emergency response plan in the event of a release of hazardous
materials. In Formal Opinion No. 89-F2, we found that section 17
applied because the members of local emergency planning
committees were appointed by the State Committee, a division of
the Executive Department and, in creating, implementing and
enforcing compliance with emergency plans were in the service of
the State within the meaning of section 17.
Similarly, REMSCOs are designated by the Commissioner of
Health with the approval of the State Emergency Medical Services
Council, created in the Department of Health. REMAC members are
approved by the affected REMSCO. Each entity performs duties
under State law to promote the effective provision of emergency
medical services throughout the State. They are integral parts
of a State system to ensure that emergency personnel are properly
trained and prepared and render emergency medical services,
consistent with State standards and meeting local needs. In
performing these responsibilities, the members of REMSCOs and
REMACs are in the service of the State within the meaning of
section 17 of the Public Officers Law.
We conclude that members of Regional Emergency Medical
Services Councils and Regional Emergency Medical Advisory
Committees are entitled to defense and indemnification on the
terms and conditions of Public Officers Law § 17 in any civil
action or proceeding arising out of any alleged act or omission
which occurred or is alleged in the complaint to have occurred
when they are acting within the scope of their statutory duties.
As an ex officio member of a REMSCO, the county medical services
coordinator would receive defense and indemnification by the
county in relation to his or her REMSCO responsibilities.
Defense and indemnification would also be subject to
sections 3003(9) and 3004-a(3) of the Public Health Law, which
provide that no civil action may be brought against any member,

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officer or employee of a REMAC or a REMSCO for any act, failure
to act, or statement or opinion made, while discharging his or
her duties, without prior permission from a justice of the
supreme court. Further, under these provisions a member, officer
or employee is not liable for damages if he or she acts in good
faith, with reasonable care and upon probable cause.
Very truly yours,

DENNIS C. VACCO
Attorney General