In June 2013 the Pinsky Law Group obtained a favorable decision from the Second Department, Appellate Division. The Court unanimously upheld the trial court’s decision that the Election Law does not apply to Fire District elections unless the Election Law is specifically incorporated. In this case, the Fairview Fire District provided an affidavit ballot to a voter which claimed to have been registered to vote in the fire district but was erroneously omitted from the voter registration list. Although the Fire District elections committee made good faith efforts to obtain an affirmation ballot from the voter, the election committee did not strictly comply with the Election Law’s requirements for affidavit ballots. The Court held that strict compliance was not required, as the Election Law governing affidavit ballots did not apply to Fire Districts. The individual’s vote was permitted to be included, causing a tie vote among the candidates and requiring a new vote to be held. This case serves to protect Fire Districts from having to comply with the strict and numerous requirements of the Election Law in the many instances when the legislature did not intend for fire districts to comply.
This case should prove to everyone that having policies which impose standards more stringent than the law can create liability. Thus, it is better to rename your policies, ”guidelines”. In this case, a police officer driving an emergency vehicle was speeding and killed a citizen. The court stated that speeding was permitted under New York law. However, because he may have violated a policy of the town police department, the judge refused to dismiss the case and permitted it to go to a jury. The jury will be permitted to decide whether the officer’s violation of the policies of the police department made the officer ”reckless”. In order to find the officer liable, a jury must find that police, just as fire and EMS, while driving emergency vehicles, acted in reckless disregard for the safety of others, and not simply negligently. The reckless standard is a protection given to us as drivers of emergency vehicles. However, according to this court (one of the state’s higher courts), violating a policy can be evidence of recklessness.
Therefore, be careful imposing standards upon your company which are more stringent than the law. If you refer to NFPA driving standards in your policies, you are taking on this risk.
JAMES F. ALLEN AND DANIEL T. ALLEN, INDIVIDUALLY AND AS CO-EXECUTORS OF THE ESTATE OF DELIA H. ALLEN, DECEASED, PLAINTIFFS-APPELLANTS, v. TOWN OF AMHERST AND BRIAN G. MILLER, DEFENDANTS-RESPONDENTS.
SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT
May 3, 2002, Entered
OPINION: MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by denying defendants’ motion in part and reinstating the complaint insofar as it seeks to impose liability on defendant Town of Amherst with respect to defendant Brian G. Miller’s operation of the police vehicle and as modified the order is affirmed without costs.
Memorandum: On a Saturday afternoon, defendant Brian G. Miller, a police officer for defendant Town of Amherst (Town), received a dispatch of ”customer trouble” involving a ”white male patron at the bar intoxicated.” Miller responded to the call by heading to the location of the bar with his emergency lights and siren activated. Miller’s vehicle collided with a vehicle driven by plaintiffs’ decedent as she attempted to turn into a shopping plaza in front of Miller’s vehicle. Decedent died as the result of the injuries that she sustained in that collision.
We conclude that Supreme Court erred in granting that part of defendants’ motion seeking summary judgment dismissing the complaint insofar as it seeks to impose liability on the Town with respect to Miller’s operation of the police vehicle. Although defendants met their initial burden on the motion, plaintiffs raised a triable issue of fact whether Miller acted with reckless disregard for the safety of others in his operation of the police vehicle (see Vehicle and Traffic Law § 1104 [e]; see generally Saarinen v Kerr, 84 N.Y.2d 494, 501, 620
N.Y.S.2d 297, 644 N.E.2d 988). Plaintiffs submitted evidence that Miller was traveling at a speed between 62 and 72 miles per hour. Miller’s conduct in exceeding the posted speed limit ”cannot alone constitute a predicate for liability, since it is expressly privileged under Vehicle and Traffic Law § 1104 (b) (3)”( Saarinen, 84 N.Y.2d at 503). Defendants acknowledged, however, that there was other vehicular traffic in the vicinity, and plaintiffs raised a triable issue of fact whether Miller was in violation of the rules and regulations of the Town of Amherst Police Department (see Criscione v City of New York, 97 N.Y.2d 152, 158, 736 N.Y.S.2d 656, 762 N.E.2d 342; cf. Saarinen, 84 N.Y.2d at 503).
Plaintiffs’ expert in the area of police vehicle operations and emergency responses opined that Miller’s response and operation of the vehicle was in reckless disregard for the safety of others.
We conclude, however, that the court properly granted that part of defendants’ motion seeking summary judgment dismissing the complaint insofar as it seeks to impose liability on the Town based on the actions of the 911 ”complaint writer” and the police dispatcher. Defendants established as a matter of law that the determinations of those individuals with respect to how much information to relay ”involved the exercise of discretion” and thus the Town may not be held liable for the consequences of their determinations ( Tango v Tulevech, 61 N.Y.2d 34, 40, 471 N.Y.S.2d 73, 459 N.E.2d 182; see Mon v City of New York, 78 N.Y.2d 309, 313, 574 N.Y.S.2d 529, 579 N.E.2d 689, rearg denied 78 N.Y.2d 1124). We therefore modify the order by denying defendants’ motion in part and reinstating the complaint insofar as it seeks to impose liability on the Town with respect to Miller’s operation of the police vehicle.
Fire departments pay attention! The failure to follow the steps outlined in this article could cost your firefighters and their families death and disability benefits and could bankrupt some municipalities and fire departments.
The Volunteer Firefighter Benefit Law (VFBL) restricts the award of death and disability benefits to “active members” of a fire department. A 2003 memorandum from a former governor held that some insurance companies refused to provide VFBL benefits for injured and deceased firefighters because the fire departments failed to comply with certain laws. This article is intended to prevent denials of claims and protect your firefighters, their families, your fire department and the controlling municipality or fire district.
All applicants for membership must be approved by the municipality or fire district in control of the department before they participate in any activity. Although village and fire district controlled fire departments usually comply with this law, we find that most fire departments who contract directly with a town do not comply. This could be a serious mistake!
Every fire department located in a town’s fire protection district is under the control of the town. True, the town does not have much control over the fire department, but there are certain laws with which the fire department must comply. Every time we advise “independent” fire departments of this law, they dispute the fact and argue that they are not under the control of the town. Trust us, the department must report to the town in limited instances or suffer dangerous consequences.
Every fire department must receive the approval to admit each new member by the municipality in control of the fire department. That means as follows:
- Fire departments located in villages – the village approves new members
- Fire departments located in fire districts – the fire district approves new members
- Fire departments located in cities – the city approves new members
- Fire departments located in a fire protection district outside of a village, fire district or city – the town approves new members
The law requires the secretary of the fire department to forward the name of the new member to the municipality. If the municipality fails to act on the applicant, then the applicant is automatically approved after a certain amount of time. How much time? This is a bit more confusing.
- If the applicant resides in the home territory of the fire department (village, district, city or protection district) in which the main fire house is located, then the member is automatically approved if the municipality fails to act within forty (40) days.
- If the applicant resides in a territory in which the fire department is paid to provide primary fire protection, then the member is automatically approved if the municipality fails to act within forty (40) days.
- If the applicant resides outside of these first two territories, but either works in the area and is available to respond to calls, or resides in the “vicinity” of the home territory, then the member is automatically approved if the municipality fails to act within seventy (70) days. What is the “vicinity”? That will be discussed in a future upcoming article.
What if the fire department has never received approval from the municipality in control? We strongly suggest that the department provides the municipality (or fire district) with a list of every member who was admitted after June 2003 and ask the municipality to “ratify” the membership by passing a formal resolution. Why June 2003? There was a special state law passed back then ratifying the membership of every member, whether or not they were approved by the municipality in control. The legislature recognized the problem addressed by the governor that some insurance companies were denying benefits. However, that same law has not come forward since that time.
Remember: no applicant should perform any activity in the fire department until s/he is approved by the municipality in charge or until the time for action by the municipality to act passes.
Residency issues are confusing. As discussed briefly above, and as will be discussed more fully in an upcoming article, the law imposes strict requirements on residency. Of importance to this article, the department must ensure that any person that moves from inside the home territory to outside the home territory receives company and controlling municipality/district approval.
Failure to comply with the following procedure will automatically remove the moving member from membership!
The law requires certain steps for any person that moves out of the home territory or a territory for which the department is paid to cover on a primary basis. First, the member must receive the approval of the fire company or department to continue to remain a member. This request to remain a member must be submitted at least thirty days prior to moving.
Once the fire company approves the continuation of membership, the member must receive the approval of the controlling municipality or fire district.
Once again, the failure to receive approval will automatically result in loss of membership. If the company has members who have moved out of the home territory, then the company should ratify the individual’s membership, and then the controlling municipality or fire district should do the same. Ratification simply means that a resolution is adopted approving the membership despite prior non-compliance with the law.
This law does not apply to anyone moving from outside the home territory inside the home territory.
Who is an “active member” of the fire department such that they are entitled to VFBL? Review your bylaws to ensure that every person who responds to an emergency is defined as an “active member”. We find that all too often, bylaws create a category of active member, but then have separate categories for probationary members, junior members and even life members. This is incorrect and dangerous. An insurance company could look at the bylaws and say that those other members are not clearly defined as “active members”.
The bylaws should create several categories of membership, with sub-classes as necessary. For example, classes of membership could include Active, Inactive, Honorary, and Social.
Sub-classes of “Active” would include your “full members”, probationary, junior and even auxiliary.
Auxiliary you ask? Perhaps, yes. Does your auxiliary membership have a pager and/or get summoned in during an extreme emergency to provide food or drink (ie: rehab)? If so, why not make them “active members”. One big advantage of doing so is that they would then be entitled to VFBL benefits. Another advantage to the controlling municipality is that anyone entitled to VFBL is prohibited from suing the department. VFBL benefits may be significantly cheaper than paying an auxiliary volunteer for pain and suffering incurred as a result of becoming injured while responding to assist the fire department.
The auxiliary membership has to be addressed in the bylaws. Auxiliary members, as with any member, can have restricted voting rights on issues and can be prohibited from holding office. The bylaws simply list them as active.
The possible “negative” is that all active members are entitled to benefit from the foreign insurance funds/2% funds. If the department does not wish to share these funds, then listing them as active might be viewed negatively.
What about life membership? Life membership should be a status, not a class of membership. There should be two classes of life members: Active life and retired life. Active members still respond to emergencies as any other active member. Retired life members do not respond toemergencies any longer and do not participate in drills or trainings. They are not entitled to VFBL. Do not include life as a sub-class, but instead keep it as a “status”.
Obtain municipal/district approval for all fundraising activities! Failure to obtain approval can result in the denial of VFBL benefits in case a firefighter is injured.
General Municipal Law Section 204-a requires that prior to engaging in any fund raising activity, the fire company must provide written notice to the municipality or fire district in control of the company. The notice must state that the fire company plans to conduct a fundraising activity.
This is a serious law! If a firefighter is injured, disabled or killed while participating in a fundraising activity that is not approved in accordance with this statute, the Volunteer Firefighters’ Benefit Law will not bestow benefits upon the firefighter, spouse or children.
Approval of the written submission should be noted in the company’s minutes and even the municipality’s/district’s minutes. If proper notice is not given and approval received, the fire company could find itself without insurance coverage for injuries sustained by volunteer firefighters or possibly non-firefighters.
A notice must be given to the clerk of the municipality or secretary of the fire district in control of the fire company. The notice must generally:
- describe the activity;
- specify the time or times when, the place where, and the period during which the activity will be conducted;
- set forth the names of the firefighters who will serve on each of the committees in connection with the activity.
If the municipality or district fails to act on the request for approval within thirty (30) days after notice is provided, then approval is deemed to have been granted by default.
If a municipality is unaware of the activity, it might not be liable for any injuries occurring at the event. Thus, if the municipality purchases insurance covering fire company events, the insurance might not be available to the fire company or its members in this instance.
The fire company can certainly provide one list of all events to the municipality or district at the beginning of the year, including events that repeat on multiple dates. And again, this also applies to fire companies located in fire protection districts which contract with towns.
Fire departments should pay careful attention when drafting their bylaws to the issues discussed in this article. The department also has to recognize that the law imposes pre-requisites to being entitled to VFBL coverage. Working with an attorney knowledgeable in fire department issues can significantly help protect the department and its members. Departments should consider reviewing their bylaws and policies with an attorney skilled in fire department issues.
Recruitment and retention are important, no doubt. The question is, how far can fire and EMS companies go to retain volunteers? There have been many ideas attempted, and some of the ideas threaten the protections offered to volunteers.
Volunteer EMTs and firefighters receive a certain level of protection under the law by making it harder to prove that the EMT or firefighter breached the standard of care. Instead of having to prove that a volunteer EMT was simply negligent (failed to act as an ordinary EMT would), a plaintiff must prove that a volunteer EMT was grossly negligent (failed to even attempt to act as an ordinary EMT would). Volunteer firefighters have even more protection. A plaintiff must prove more than that the volunteer firefighter was simply negligent, but instead must prove that the volunteer firefighter was reckless (such that the firefighter’s actions were so likely to cause injury that the actions were almost intentional).This is extremely difficult to do in many instances.
Both of these higher standards are referred to, in New York, as the ”Good Samaritan” law. However, if the volunteer EMT or firefighter has the expectation of compensation or remuneration (expects to receive money or a reward for his actions), the volunteer will lose the protection offered by the law, and a plaintiff need only prove the EMT or firefighter was ”negligent”. This is much easier to prove than gross negligence or recklessness.
Therefore, the question is, what is the expectation of compensation or remuneration? Service award programs (pension programs for volunteer EMTs and firefighters) have been overlooked by plaintiffs as qualifying as an expectation of compensation. This is a good thing, because the law presently makes no exception to the definition of remuneration or compensation for the Service Award Program. However, the law clearly did not intend to penalize volunteers for receiving this pension, and it is not likely that a volunteer would lose his/her volunteer status as a result of being enrolled in the Service Award Program.
However, some other ideas could result in the loss of the volunteer status. Direct monetary payments or gifts related to the attendance at a call or drill could result in a loss of volunteer status. However, for those agencies that want to reward volunteers with such gifts for attendance at drills or calls, one approach is to relate the gift to the activity. For instance, if a volunteer responds to a call, the volunteer places wear and tear on his uniform, flashlight, stethoscope, turnout gear, gloves, etc. Replacement of items such as these, based on the accumulation of points from attendance at drills and calls, directly relates to the wear and tear placed on such items. Therefore, the agency could create a program that is designed to replace worn items. When does an item necessarily become worn? After an EMT or firefighter attends a certain number of calls or drills, you may presume any item carried was worn.
Alternatively, the agency could believe that certain equipment is preferred to be carried by a volunteer, though not required. After the volunteer attends a certain number of calls or drills, if the volunteer has not purchased the item for himself, he could be awarded such item. Some fire departments, for example, provide ”New Yorkers” (helmets) to the new interior firefighters once they complete the interior classes. A fire helmet is certainly related to fire fighting and is obviously necessary for the job.
Another item intended to retain a volunteer that should not jeopardize the volunteer status is life insurance. This item is related to work in fire and EMS and should be given to a volunteer. Life insurance could be a policy on top of that provided under New York law. However, there are two types of life insurance: term and whole life. Term insurance expires at a certain age, and has no monetary value. Whole life, however, has a monetary value, never expires, and the insured can take a loan against the value of the policy at some point. This type of insurance might jeopardize the volunteer status, as it could accumulate a significant cash value.
There are many ways to recruit and retain volunteers. However, the volunteer agency should ensure that it is not offering benefits that could result in a loss of the volunteer status. Loss of such status could result in loss of a lawsuit, and loss of life insurance and disability protections offered to volunteer firefighters and EMTs. Consult with your attorney for a determination of whether any recruitment or retention program might result in a loss of volunteer status.
A law, signed on August 3, 2007, removes the obligation of fire companies and voluntary ambulance services from paying the New York State mortgage tax. A mortgage tax is imposed on all mortgages recorded in New York State, at the cost of .0075% of the mortgage. Thus, $750 for every $100,000 mortgaged.
There may be some confusion as to who should benefit from this law, especially by the use of the term “voluntary ambulance service”. That term, as defined by General Municipal Law 100, and by Section 3001(3) of the Public Health Law, includes a not for profit ambulance service.
As the law is new, any agency signing a mortgage should ensure that their attorney knows about this new benefit.
Fire departments beware! On August 17, 2006, President Bush signed into law the “Pension Protection Act of 2006.” This new law requires all organizations to file forms with the Internal Revenue Service once per year. Failure to comply with the law will result in loss of tax exempt status.
The Prior Law
Until now, only organizations that generated more than $25,000 of revenues were required to file Federal Income Tax Form 990. Now, all organizations must file either a tax return or proper notice form, depending on income.
Revocation of Exempt Status if Returns and/or Notices Not Filed
Under the new law, federal income tax exempt status is REVOKED if an organization with at least $25,000 of revenues fails to file Form 990 for three successive years. This is in addition to the possible $10,000 per year penalty for failure to file the tax return. Organizations with less than $25,000 of gross income that fail to file the required notice for three successive years will also lose tax exempt status.
New Notice Requirement for Small Organizations
The new law requires all 501(c)(3) organizations with less than $25,000 of income to furnish annually, in electronic form, and at such time and in such manner as the I.R.S. may require, a notice setting forth:
(A) the legal name of the organization,
(B) any name under which such organization operates or does business,
(C) the organization’s mailing address and Internet web site address (if any),
(D) the organization’s taxpayer identification number,
(E) the name and address of a principal officer, and
(F) evidence of the continuing basis for the organization’s exemption from the filing requirements under subsection (a)(1)
The new reporting form is being created by the I.R.S. and will inevitably require some skill in preparing and filing.
What If Your Tax Exempt Status is Revoked?
The I.R.S. will publish a list of the organizations that have had tax exempt status revoked. The organization will have to reapply for new exempt status. If the organization can show “reasonable cause” for failure to file the return/notice, and reapplies, exemption may be granted retroactively to the date of loss of exemption, so that there is no break in tax exempt status. However, the re-application process is complicated and time consuming.
The I.R.S. will also notify New York State of the loss of charitable status, which could lead to a loss of charitable donations to the organization.
What Should You Do Now?
Start filing! The Pinsky Law Group, PLLC prepares the required tax returns and tax exempt applications for numerous fire departments across the state of New York! Contact us at: (315) 428-8345.
Many ambulance companies throughout New York state and throughout the nation have enacted “subscription programs” or “membership programs”. These programs typically provide that in exchange for a flat fee each year, a paying member or “subscriber” will not be charged for all or a portion of the ambulance service if such service is utilized.
Recently, the federal government commented that these programs do not violate any federal law if the programs meet certain requirements. New York state might take a different view, and the ambulance company that sponsors the program might be violating the Insurance Law and committing criminal fraud.
The New York State Insurance Department issued an opinion on May 29, 2001 that concludes that this type of plan is not permitted under the New York State Insurance Law. The general reasoning is that the subscription price is equivalent to an insurance premium and that the ambulance company is providing insurance to subscribers.
Under New York Insurance Law § 1101(b)(1)(A) (McKinney 2000), the making as insurer of any insurance contract constitutes the doing of an insurance business in this state. Since the sponsors of these subscription programs are not licensed by this Department, and because these programs are not specifically exempted from the statutory requirement for licensing, subscription programs are not permitted under the New York State Insurance Law.
However, the Insurance Department has also stated as follows:
“Finally, there also exists the possibility that the network members, whose participation in the Plan essentially amounts to the waiving of co-payments, could be construed as running afoul of N.Y. Penal Law § 176.05 (McKinney 2000). That section provides as follows: “A fraudulent insurance act is committed by any person who, knowingly and with intent to defraud presents, causes to be presented, or prepares with knowledge or belief that it will be presented to or by an insurer, self insurer, or purported insurer, or purported self insurer, or any agent thereof, any written statement as part of, or in support of, an application for the issuance of, or the rating of a commercial insurance policy, or certificate or evidence of self insurance for commercial insurance or commercial self insurance, or a claim for payment or other benefit pursuant to an insurance policy or self insurance program for commercial or personal insurance which he knows to: (i) contain materially false information concerning any fact material thereto; or (ii) conceal, for the purpose of misleading, information concerning any fact material thereto.”
The waiving by health care service providers of otherwise properly payable co-payments and deductibles has been viewed by the Department as violative of the above provision.
The Insurance Department has referred these matters to the Attorney General for prosecution. Although we are not aware of any prosecutions to date, the threat of such action is real.
Those who offer subscription programs in any form should consult their lawyer regarding this issue and should strongly consider terminating these programs. Those who are interested in continuing these programs might consider sponsoring a change in the Insurance Law to permit these programs on a case by case basis. Until that time, those who offer subscription programs in any form should consult their lawyer regarding this issue and should strongly consider terminating these programs.
Brad Pinsky frequently advises clients on billing matters such as these in an effort to prevent his clients from entering into questionable business arrangements
Ambulance companies which bill for their services must be careful not to violate the many laws which apply to them. Each company which bills should consult an attorney knowledgeable with these issues before signing or renewing a contract.
Contracts with towns
Ambulance services are permitted to bill user fees and to receive contract fees from a town at the same time. Although this was not permitted in the mid-1980’s, the law has since been amended to permit this arrangement. However, if an ambulance company contracts with a municipality to provide ambulance services to the municipality, the contract must contain a clause permitting the service to bill user fees. A schedule of fees must also be attached to the contract. This is extremely important. Other clauses should permit the ambulance company to collect the fees directly from the user.
“Soft billing” and waiving co-payments
Many not for profit ambulance companies use practices entitled “soft billing” or “insurance only” billing. Both of these practices can be illegal.
Soft billing practices vary among providers, but the common thread appears to be that the company terminates its efforts to collect the patient’s portion (i.e.: co-payment) of user fees at some point. Soft billing can violate federal law.
Soft billing essentially entails sending a limited number of billing notices for co-payments to patients. This practice “walks the line” of violating federal law, though all that is generally required is a good faith attempt to collect the co-payment. One notice may not be enough, while sending three notices should suffice. Of course, the notice should not in any way state that paying a co-payment is optional or is considered a donation. Providers also should be careful that agreements with insurance companies do not impose a greater requirement for collection activities.
Those companies which collect Medicare insurance payments may not waive co-payments. Waiving a co-payment involves foregoing the collection by either not making a good faith attempt to collect it, or by agreeing not to collect it. In fact, a company that in its contract with a municipality agrees to waive the insurance co-payments of the municipality’s residents may violate a federal criminal law by offering a kickback. The government will likely view the waived co-payment as a payment for the contract with the municipality itself. A policy of an ambulance company to not send a bill for the co-payment to a patient may also be a breach of a payment agreement with an insurance company, as insurance companies may require ambulance service providers to collect the co-payment from their users.
Co-payments can be paid by another party. For instance, the federal government permits the town with which an ambulance contracts to assume the payments of the co-payment. Thus, the town contract payment can be supplemented for any co-payments of residents, so long as the payments are reasonably related to the actual co-payment amounts. This is a big political benefit to the town and ambulance service.
Health Maintenance Organizations
A recently enacted law requires Health Maintenance Organizations (“HMOs”) to pay for ambulance services as long as the transportation provided was required for an emergency condition. The condition need not have truly been an emergency condition so long as a reasonable person would have believed that the absence of transportation would have placed the patient in serious jeopardy (see Insurance Law Section 3216 for more information about this requirement). Ambulances should arrange for payments and for the amounts of payments with the HMOs.
Any company that bills Medicare for an intercept or ALS hookup must have an intercept agreement with the transporting or intercepting company. Only one bill for services should be submitted, with both the BLS/transporting and ALS portion combined. This is generally a Medicare requirement only, and is often not applicable to non-federal insurance programs.
Those who bill for services should strongly consider implementing a corporate compliance program. Simply put, a compliance program creates a system to dissuade corporate fraud. Companies that come under scrutiny from the government for their billing practices are likely to receive favorable treatment if they have a truly active compliance program.
Readers should also review the article entitled “Contract Issues for Ambulance Providers”. However, those services that bill have the additional concern of not only being permitted to bill, but maintaining legal billing practices. While some companies feel that they are being kind by waiving co-payments, this is a prohibited practice. There are better avenues to avoid having tax payers remit co-payments. Moreover, billing for services can be dangerous if the billing programs are not well planned. Bradley M. Pinsky, Esq. assists his clients with creating, managing, reviewing and operating billing programs and the related issues.
Disciplining members is never a positive experience, but it is a necessity in fire and EMS organizations. It becomes more unpleasant however, if members do not receive the rights afforded to them and are able to successfully appeal and obtain a reversal of the discipline. Therefore, it is extremely important that the bylaws be carefully drafted and contain protections for the corporation and the member. The use of an attorney familiar with fire and EMS corporations can be extremely useful in this process.
Section 601 of the Not For Profit Law provides that a not for profit corporation has the power to discipline, suspend, or expel its members. However, the statute does not provide a method for punishing members or permissible reasons for punishment. The requirements for disciplining members can be gleaned from the multitude of cases where courts evaluated and criticized the processes used by corporations to impose discipline.
It should be noted that for firefighters, there is a second law that applies, that being section 209-l of the General Municipal Law. However, if the bylaws are structured as suggested below, the corporation will comply with that statute as well.
Although this article will not address reasons for discipline, suffice it to say that the reasons for discipline must be provided in the bylaws or policies, or the discipline may not be enforced by a court. A policy which provides general reasons, for example “unprofessional conduct”, should be sufficient.
Let us first state that a member may be suspended before and during the hearing.
Understand also that discipline must be carried out in accordance with the bylaws. If a process is provided in the bylaws, and it is not followed, the discipline may not be enforceable. A court can order the discipline reversed and nullified. Similarly, if there is no process for discipline described in the bylaws, the discipline imposed may not be enforceable.
So, what rights and procedures must the bylaws contain to ensure that the discipline will withstand the review of a court?
Notice of hearing
First, all procedures must provide a member with notice of charges and an opportunity to be heard at a hearing. This means that the date and time for the hearing must be stated in the notice. The notice should be in writing and should specifically outline the hearing procedure to be followed and the members rights. The notice should be mailed to the members address on file with the corporation, by certified mail, return receipt requested. The notice should also state the possible outcomes of the hearing, such as suspension up to a certain amount of days, termination, and loss of privileges.
If the member is temporarily suspended until the hearing decision, the member should be advised of any limitations imposed upon him, such as a prohibition from attending calls, meetings, drills or social functions.
We suggest that a member be given an opportunity to waive the hearing and simply admit to the charges.
The member facing punishment should be afforded a fair hearing before a neutral person(s) not involved and not a witness to the events in question. The neutral party could be a member, or could be a member of the public such as a lawyer, clergy or physician. Many lawyers are well suited for these tasks due to their familiarity with fair hearings. The lawyer should not be the corporation’s lawyer. The board of directors or a committee of members is also permissible, so long as they were not involved in the incident(s).
The member must be able to attend the full hearing and ask questions of the witnesses. Themember may even be provided the right to counsel, or be advised that he can represent himself, as is more common.
The hearing board or officer should render a written opinion stating the facts determined after the hearing. It should record who attended the hearing, who spoke, and that the member had the opportunity to interview the witnesses.
Assuming that the fact finder believes punishment is warranted, the decision should be forwarded to another person, committee or body. An ideal method of imposing discipline is for the members to decide the punishment based upon the facts decided by the neutral party. The members should be advised that they may consider only those facts presented to them, and not other information, such as there own knowledge or allegations they might have heard elsewhere. The members should be advised of their discipline options, consistent with the bylaws, and then vote after discussing the possible discipline options. Majority votes are sufficient.
Discipline may also be imposed by the board of directors or another committee, but the discipline most likely to be upheld by a court will be the membersdecision. Of course, the discipline imposed must be consistent with the violation. In other words, the punishment must fit the crime.
Although not mandatory, the right to an appeal is a useful option to ensure that a members rights are protected. Additionally, if a disciplined member fails to use the appeal method, he may not be entitled to appeal to a court. Another neutral party or committee not involved in any prior stage of the discipline process can serve as an appeal board to determine whether or not the discipline was consistent with the violation.
EMS services and fire departments have the right to discipline members. Still, a member has the right to be protected from unfair discipline processes or unjust discipline. Following the procedures in this article will help to ensure this protection. Of course, the bylaws must be carefully drafted and the procedures clearly outlined. The Pinsky Law Group, PLLC can assist in drafting bylaw provisions and other documents necessary to protect the corporation and its members.
If you administer a for-profit or not-for-profit ambulance company or a municipal ambulance that bills for ambulance services, the government wants you to seriously consider implementing a voluntary compliance program. Indeed, this is a great idea. The federal government has been and will continue to be relentless in its pursuit of individuals and corporations that are collecting undue Medicare payments illegally or even erroneously. The government has even suggested that corporations that use a third party billing service should implement such a program, as should the billing service.
Anyone doubting that the government will pursue even not-for-profit ambulance companies should remind themselves of all of the effort the government just spent on the issue of hospital restocking. Indeed, that issue revolves around the possible offering by a hospital of an illegal incentive (free supplies) to cause the ambulance to bring its patients to that hospital. This is just one of many activities for which the government will prosecute companies and individuals. It is but one illegal activity that a compliance program would detect before the government.
What is a compliance program?
A compliance program is a series of approximately nine policies that are designed to detect and prevent fraudulent and abusive billing practices as well as other illegal practices not related to billing. It is also designed to detect on-going errors made by the company. The government has made it clear that entities that implement a voluntary compliance program will receive favorable treatment if the company is alleged to have over-billed Medicare.
In order to understand the importance of a compliance program, you have to understand the risks you face when billing Medicare or merely accepting federal funds. If an individual or a corporation is found to have intentionally or knowingly over-billed Medicare for services rendered, the penalties can include a $10,000.00 fine per offense (ie: per error), disbarment from the Medicare program, and even jail time. Since penalties also include tripling each fine, the fines can quickly add up to hundreds of thousands of dollars. Needless to say, a corporation should expect to incur severe penalties if it intentionally over-bills Medicare.
However, the cause for real concern is that a corporation can incur these severe penalties if the government (or a jury) finds that the corporation knew or “should have known” that it was making repeated mistakes which resulted in overpayments when billing or causing bills to be issued. Indeed, if a third party billing company is making these mistakes on the corporations behalf, you may also be subject to penalties for failing to recognize them.
Again, however, its not just billing that can get a corporation in trouble. There are numerous other illegal practices, such as soft billingand waiving co-payments that can be the cause of harsh penalties.
Guilty if the corporation “should have known”
The government will prove that the corporation “should have known” about the overpayments or other illegal practices by showing that the corporation created an atmosphere which was conducive to over-billing or the other illegal practices. How do you know if your corporation is conducive to over-billing or illegal practices? Answer these questions:
- Does the corporation instruct its employees to report any intentional or unintentional billing errors or suspected illegal activities?
- Does the corporation teach its employees to report intentional or unintentional billing errors or other illegal activities?
- Does the corporation provide employees with an anonymous method to report errors, billing fraud or other illegal activities?
- Does the corporation audit its billings (or those of a third party service) to screen for mistakes?
- Has the corporation had an independent attorney review its contracts with third parties toensure compliance with federal and state laws?
- Does the corporation investigate allegations of errors or fraud brought by nonemployees?
- Does the corporation punish its employees for not reporting errors or illegal activities or reward employees for reporting them?
- Does the corporation have a high level employee in charge of each of these functions who reports to the board of directors?
If the corporation cannot answer “yes” to each of these questions, then in the government’s eyes, the corporation has permitted an atmosphere conducive to over-billing.
What is the benefit of a compliance program?
The government believes that if a corporation creates an atmosphere that encourages employees to be looking for illegal activities or even simple mistakes, the corporation is not one that would “intentionally or knowingly” have conducted that activity. Therefore, if the government cannot prove that the corporation “intentionally or knowingly” engaged in illegal conduct, the corporation will be free from the severe fines and penalties that could otherwise be imposed.
Again, however, one of the government’s most popular charges is that the company “should have known” that it was engaging in illegal activity or over-billing. The government will prove this by showing that the illegal conduct or over-billing was occurring continuously for a long time. Thus, the government will be able to conclude that the corporation should have detected this on-going problem, but never looked for it. If a company simply closes its eyes to potential over-billing or illegal conduct, or never even audits itself to look for errors, the government may attempt to impose severe penalties for permitting these “mistakes”.
Therefore, a compliance program is designed to prove to the government that the corporation created an atmosphere in which employees were educated and encouraged to relate potentially illegal or mistaken over-billing.
How do we create a compliance program?
A compliance program does not have to be complicated, despite many consultants’ attempts to make it so. In fact, most of the work involves creating one or two page policies which address the eight factors stated above.
The Pinsky Law Group, PLLC is well equipped to assist your corporation in designing and implementing a compliance program that will be satisfactory to the government. The firm has been creating compliance programs since they were first introduced for other health care professionals several years ago. Moreover, we possess a detailed knowledge of the operation of ambulance companies, since we not only represent a multitude of ambulance companies, but the head of the Fire Protection and EMS Provider Practice was the director of an ambulance company for many years.
The government has warned that companies should not use their own attorneys to implement the compliance program, since the government wants the company to conduct an independent audit of itself as part of the implementation process. A lawyer who has drafted many of the contracts or provided advice regarding the operations is not independent or unbiased.
Some consultants or attorneys offer “off the shelf” compliance programs. The government has warned that there is no one size fits all compliance program. If such a program is purchased by a corporation, and does not truly become part of the corporation’s operations, the government will view this insincere attempt to prevent fraud as part of the attempt to conduct fraudulent activities.
The government has set its sights on ambulance companies and municipal ambulances that bill Medicare. Even companies that do not think that they are doing anything illegal can be found guilty of various illegal activities simply by not looking for them or trying to preventthem. The government has promised that a true compliance program will offer a company better protection from prosecution. Is it worth taking the risk of not having a compliance program in place?