Issues Regarding Junior Firefighters

Determining those tasks persons under the age of eighteen can perform in a fire department can be a complicated decision. Confusing the problem is that the Boy Scout Explorer Program does not seem to fit clearly into the puzzle. If you are confused, consider these suggestions.

The law: Only 2 categories

Do not categorize youth (persons under 18 years of age) as Explorers. Instead, the law recognizes only two categories of young persons: Active Firefighters and Youth Program Participants (This is not the exact name, but it makes it easier to remember). Active Members, for the purposes of junior members, are sixteen or seventeen years of age. Youth Programs have members who are any age, but generally under eighteen.

Active Junior Firefighters

The distinction is significant. An active firefighter is entitled to VFBL coverage. At the present time, only persons who are at least sixteen years of age should be active firefighters. These persons may participate in hazardous activities, although you should consider limiting this danger, for reasons discussed below. The Attorney General has opined that the labor law does not prevent a person sixteen or seventeen years of age from being an active firefighter.

Youth Programs

Youth programs exist under section 204-b of the General Municipal Law. Persons in this category may not participate in any emergency operation or any hazardous activity. They are not entitled to VFBL coverage.

Boy Scout Explorers

What do you do with Explorer Post members? Any Explorer who is at least sixteen years of age and permitted to engage in emergency operations or hazardous activities should be admitted as a member and categorized as an Active Junior Firefighter. The bylaws should reflect this category. A model bylaw provision appears below. Remember that all fire departments must submit the names of new members to the controlling town, village or fire district.

Explorers or other youth who are fifteen years of age or younger should be categorized as participants in a youth program. Again, they may not participate in an emergency operation or a hazardous activity. The department must determine what is such an operation or activity. No consent is required from any town, village or fire district, as they are not members.

Model Bylaw Provision

Active Junior Firefighter. Active Junior Firefighters shall be those members who are sixteen or seventeen years of age. They shall be considered active members of the fire department. They shall be permitted to participate in all emergency operations, drills, trainings, parades, and educational programs. They shall be permitted to attend meetings and participate in committees. They shall be permitted to have a voice in all meetings and committees. Such members shall not be permitted to vote at meetings or committee meetings. They may not operate emergency vehicles. They shall not be permitted to serve as line officers, directors, executive officers, or committee chairpersons, except that a junior may participate in, vote at and chair the Junior Firefighter Committee. The Best Practice Guidelines shall be permitted to dictate additional duties, prohibitions, obligations and privileges of Active Junior Firefighters.

Reckless Endangerment of a Minor

The Penal Law can penalize adults who knowingly permit a minor to participate in a hazardous activity with a substantial risk of harm if the hazardous activity causes injuries to the minor. For purposes of this law, only persons under the age of seventeen are protected.

The crime is a class A misdemeanor. This law should be a factor in a decision to permit persons who are sixteen years of age to participate in a hazardous activity. Whether or not someone would actually be convicted of this crime if they made sincere efforts to protect sixteen year old firefighters from harm is unclear.

Conclusion

Junior firefighters and youth programs result in future adult firefighters. Remember that any person who participates in an emergency operation or hazardous activity must be at least sixteen years of age. Any person less than sixteen years of age may not participate in emergency operations or hazardous activities. What constitutes such activities is a determination the fire department must make on its own.


EMTs as Mandated Reporters in New York

EMTs AS MANDATED REPORTERS

Duty to report

Duty to report only when working in professional capacity as an E.M.T.

Section 413 of the Social Services Law now requires emergency medical technicians to report or cause a report to be made about suspected child abuse or maltreatment in two instances. In both cases, the E.M.T. must be acting in his/her professional capacity as an E.M.T. in order for the duty to arise. Thus, an E.M.T. who, while resting on a beach and not at work, sees a mother severely beat her child, is not under a duty to report. On the other hand, an E.M.T. who is working as a firefighter is still an E.M.T. and is thus still under a duty to report.

Report when there is reasonable cause to suspect abuse or maltreatment based upon personal observations.

When the E.M.T. has reasonable cause to suspect that a child before is an abused or maltreated child, based upon his/her own observation of the child, he must make a report or cause a report to be made. Children are persons under the age of eighteen. Reports are to be made to a hotline maintained by New York State called the Statewide Central Register of Child Abuse and Maltreatment. E.M.T.s also have the option of “causing” a report to be made. However, relying on another person to make the report is less than ideal, as there can be no assurances that the report will be made. Additionally, the hotline will ask for specific information that only the E.M.T. with knowledge may possess.

Report when information is received about abuse or maltreatment

The second instance in which a report must be made is when an E.M.T. has reasonable cause to suspect that a child is an abused or maltreated child based upon the parent, guardian, custodian or other person legally responsible for such child coming before the E.M.T. and stating from personal knowledge facts, conditions or circumstances, which, if true, would render the child an abused or maltreated child.

In other words, if a school teacher informs the E.M.T. that she personally witnessed a parent severely beating a child, the E.M.T. should report the information to the hotline. However, the law does not require that “rumors” be reported. Thus, if a neighbor simply states that she hears from others that the parents beat the child, this may not be enough to mandate that an E.M.T. make a report.

Reporting

The Report

Calls to the hotline must be made immediately by telephone or by fax using the form provided. The phone number for mandated reporters is: 1-800-635-1522. Non-mandated reporters should call 1-800-342-3720.

When making a report by telephone to the hotline, the following information should be provided:

  • the names and addresses of the child and his parents or other person responsible for his care; family composition; (where relevant) the name and address of the residential or day care facility or program in which the child resides or is receiving care
  • the child’s age, sex and ethnicity
  • the nature and extent of the child’s injuries, abuse or maltreatment, including any evidence of prior injuries, abuse or maltreatment to the child and his/ her siblings
  • the name of person or persons responsible for causing the injury, abuse or maltreatment
  • the source of the report (personal observations, or a report from another)
  • the actions taken by the reporting source, including the taking of photographs, x-rays, removal or keeping of the child or notifying the medical examiner or coroner
  • any additional information that may be helpful.

E.M.T.s required to make an oral report must then follow up with a written report within twenty-four hours after the oral report. While on the phone with the hotline, request the address of where you should mail the written report. This will be the Child Protective Service of the County designated by the State to investigate the matter.

Actions to be taken in addition to reporting.

E.M.T.s may now take or cause others to take photographs of the areas of trauma visible on a child suspected of being abused or maltreated. These photographs must be sent to the child protective service at the time the written report is sent, or as soon thereafter as possible. The E.M.T. may request that the cost of the photographs be reimbursed by the county. These requests should be made at the time the report is submitted. Thus, emergency medical service providers should consider placing a camera on their units for purposes of taking photographs of injuries, even if the parent refuses care for the child.

E.M.T.s may not take a child into protective custody and may not detain a parent from leaving with the child. However, if a police officer is present, the police officer may take the child into protective custody if the police officer has reason to believe that leaving the child with the parent or guardian presents an imminent danger to the childs life or health. The E.M.T. may provide facts to the police officer that are intended to give the officer a reason to believe that an imminent danger is present.

Penalties for not reporting

Any E.M.T. who is acting in his/her capacity as an E.M.T. and intentionally fails to report suspected child abuse or maltreatment will be guilty of a class A misdemeanor. In addition, an E.M.T. who knowingly and willfully fails to make a report will be civilly liable for any damages directly caused by the failure to make the report. A civil suit is one where the E.M.T. or its employer/volunteer agency is sued for money damages.

Bradley Pinsky, Esq. can assist departments with drafting mandated reporter policies. Such policies are required by the Department of Health. Mr. Pinsky may be reached at his firm at (315) 428-8345.


Good Samaritans: When Do You Have a Duty to Act?

People always ask me, ”when do I have a duty to act?” They pose situations where they are in a uniform, off duty, and encounter a medical emergency in a restaurant. In all cases, people want to know, do they legally have to get involved? (we’ll ignore the moral answer for now.)

A recent case provides a good example of the answer.

A restaurant employee observed a person choking. He jumped up and informed the restaurant crowd that he would call 911. For some unexplained reason, the employee failed to call 911 until a significant amount of time had passed. The patron died, possibly due to the delay of 911 being called.

The employee’s (ie: defendant’s) lawyer asked the court to dismiss the case, arguing that the employee owed no duty to assist the patron, and thus any delay in calling 911 cannot be used to prosecute the employee.

The law

In order to win a negligence lawsuit, the law requires that a defendent owe a duty to the injured person, and that the defendant breach the duty, directly causing injury.

Thus, if the restaurant employee owed no duty to the patron, then his delay in calling 911 is not actionable (ie: the injured party could not win a lawsuit for this delay in calling).

The court stated the well accepted rule that normally, a bystander has no duty to act. However, in this case, the employee assumed a duty to act by announcing that he will call 911. Once the employee assumed that duty, his delay in calling 911 could have caused injury to the patron. Thus, the court permitted the lawsuit to continue as the court found that the employee assumed a duty to the patron to act with care and to promptly call 911 as he stated he would.

The lesson is that most bystanders owe no duty unless they assume a duty to act. How can someone assume a duty? As this case shows, announcing to people that you will become involved is enough to assume the duty. Why? One rationale is that once a person announces that he is involved, he causes other people to not become involved. For instance, if an EMT announces at the scene of an accident that he will save a person, someone might not call 911.

In short, once you assume a duty to act, you must perform that duty. Until you have a duty to act, you cannot be liable for any injuries suffered.


HIPAA Violation Leads to Prison Time

Lawyers work hard to convince their clients that HIPAA violations can result in serious fines and even jail time. Although extreme, we finally have our first real life example of how serious the government is about HIPAA privacy rights.

For the first time ever, a man has plead guilty to a HIPAA violation and has been convicted of a crime!

In August, 2004, a Seattle Washington man has pled guilty in federal court to wrongful disclosure of individually identifiable health information (IIHI) for economic gain. The man admitted that he had obtained a patient’s name, date of birth, and social security number in the course of his employment in a health care field. He then used the cancer patient’s information for the purpose of obtaining credit cards in the patient’s name. He will be sentenced to a term of 10 to 16 months in prison and will pay restitution both to the credit card companies and to the victim.

The full press release can be read at:
http://www.usdoj.gov/usao/waw/press_room/2004/aug/gibson.htm


Rescue Squads of Fire Departments May Not Be Separately Incorporated

Many fire departments have separated their rescue squads into incorporated entities that are separate from the fire department/company. The rescue squads are treated as completely separate legal entities, and in fact, separate companies. This is illegal and impractical.

Power to create rescue squads

Rescue squads, whether they provide ambulance services or not, are only permitted in a fire department/company because General Municipal Law Section 209-b gives that permission.

GML 209-b provides that “The authorities having control of fire departments and fire companies may organize within such departments or companies emergency rescue and first aid squads composed of firemen who are members of such departments or companies.” The statute requires that the squads be formed “within” a department or company, but not as a separate company. If a separate company was permitted for the rescue squad, then the “dual membership prohibition” [see, Not For Profit Law 1402(c)(3), Town Law 176-b and Village Law 10-1006(10)] would prohibit firefighters from working in rescue and/or EMS and as a structural firefighter.

Therefore, treating the rescue squad as a separate company by incorporating it separately is a violation of the law and effectively prohibits persons from serving in another company at the same time. Indeed, the Comptroller has give the same opinion (See, Opinions of the State Comptroller 1991-22 and 1990-34).

Even if the rescue squad were permitted to be separately incorporated, it would have its own federal and state tax exempt status, its own federal identification number, and may have to file federal tax returns.

Those rescue squads that are separately incorporated should strongly consider moving the rescue squad back into the fire company. The leadership of the squad should examine the ambulance operating authority and determine whether it is in the name of the incorporated squad or the fire department/company. The correct approach is to have the authority in the name of the fire department/company.

There is nothing wrong, however, with having a rescue squad as part of a fire company. The members simply also belong to a rescue squad. The squad can have its own rules and requirements. It does not have to permit everyone to be a member. Although it can have its own meetings, the meetings must be considered meetings of the company in which the squad lies, not a separate meeting of the squad. That way, and for reasons to complicated to explain in this article, the meetings will qualify for service award credit, insurance protection, and other benefits. Meetings or trainings of a squad separate from a fire company would not qualify for service award credit.

Rescue squads are permitted by law, but they must be operated in accordance with the law.


OIG Issues Opinion Regarding Waiver of Medicare Co-Payments

In advisory opinion number 04-06, dated June 14, 2004, the Office of the Inspector General (“OIG”) released an opinion involving a fire district’s plan to waive the co-payment obligation of patients of its ambulance service. Initially, the fire district questioned whether it could simply apply the taxes it collects from residents in place of the co-payment obligation of its patients. The fire district provides an ambulance service and bills for such services.

The question put forth was whether the fire district’s plan would violate the federal antikickback law. The anti-kickback statute makes it a criminal offense to knowingly or willingly offer, pay, solicit or receive any remuneration to induce or reward referrals of items or services reimbursable by a federal health care program. The waiver of co-payment obligations is generally seen as an incentive offered to receive referrals of government insured patients, and is thus a federal crime. In many states, it is also a state crime.

The OIG did not answer the question put to it, but instead advised that the law does not require fire districts, as municipal corporations, to collect co-payments of persons from whom it collects taxes. Thus, the fire district, as a tax collecting entity, is permitted to collect the insurance only portion from patients. The OIG stated that the government does not view ambulance services provided to tax payers as a “free service”.

Note that although the OIG redacted the name and state of the fire district, it presumably was not a New York State fire district, as fire districts are not permitted to bill for ambulance services.

Prior opinions of the OIG permit a municipality to assume the obligation of an ambulance service with which it contracts through the payment of a fee reasonably calculated to be the same amount of the co-payment obligations of patients. However, those patients must be resident tax payers.

The OIG also warned that a municipality that contracts with an ambulance service may not require that ambulance service to waive co-payments unless the municipality accepts that obligation on the patients’ behalves.

Therefore, a municipality that desires to bill for ambulance services that it provides (as opposed to contracts for) may avoid collecting co-payments for its taxpayers.


Training with Live Victims in Fire Becomes Illegal in New York State

On July 17, 2003, the governor signed into law, Executive Law Section 159-c-1. That section states:

1. In the training of fire-fighters under live fire conditions no person or persons shall play the role of a victim.
2. For purposes of this section, a live fire condition is any unconfined open flame or device that can propagate fire to a building, a training tower, an acquired structure or other combustible material.
3. A violation of this section shall be punishable by a civil penalty not to exceed one thousand dollars paid for by the fire department conducting such training.
§ 2. This act shall take effect immediately.

The justification of the law was stated as follows:

“Training under live fire conditions is acknowledged as an important part of fire fighter training. Recently there have been a number of incidents where having persons play victims in live fire situations has led to serious injury and even death. Most recently an Assistant Fire Chief in Oneida County was convicted of criminally negligent homicide for his conduct at a live fire training scene where a trainee playing a victim was killed. Two other trainees playing victims in that exercise suffered severe burns.

While recognizing the importance of live burn training, there is no justification for the use of any person as victim. The danger and potential consequences of that are unacceptable. The National Fire Protection Association Standards on Live Fire training expressly recommends that no person shall play the role in these situations. For the protection of all those who so selflessly protect us from fires, we must adopt this standard and expressly prohibit this dangerous activity.”

The law provides a penalty of one thousand dollars by the fire department that conducts the training. However, it does not prevent the conviction of a person for criminally negligent homicide. Thus, while a civil penalty (fine) is most likely if there is no injury to a person posing as a victim, criminal penalties are still permissible for the death and even injury to such a person.