Request By:
Ms. Lavine Terry
Administrator
Medco Center of Fordsville
P.O. Box 205
Fordsville, Kentucky 42343
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
The Medco Center of Fordsville is a licensed 67 bed Intermediate Care Health Facility located in the northern part of Ohio County at Fordsville, Kentucky.
For several months you have had difficulty in obtaining transportation services for your patients from the Ohio County Ambulance Service, located in Hartford.
One of your patients, 82 years of age, who apparently suffered a Grand Mal seizure, was taken from your facility by the Ohio County Ambulance Service to an Owensboro hospital. Two days later, when the patient was discharged for return to your facility, the Ohio County Ambulance Service refused to bring the patient back, the administrator of the Ambulance Service contending the patient owed the county over $400 already. You indicated to him the patient did not have the money. The Ohio County Judge Executive explained that the fiscal court and ambulance board had agreed to take patients from a nursing home to the hospital, but would not return them from the hospital to the nursing home.
Your question is whether or not the Ohio County Ambulance Service can refuse to transport indigent patients, first taken by them from your nursing home to a hospital, from the hospital back to your nursing home.
You indicated that the Ohio County Ambulance Service guidelines include item (5), which provides that the ambulance service will transport all patients to the necessary hospital, with no questions asked. Item (6) of the guidelines, however, provides that "all runs to other locations will be made on an approved payment basis only." Apparently they have based their policy around the life saving feature involved in getting patients to a hospital. We assume the Fiscal Court of Ohio County is carrying on an ambulance service directly. See KRS 65.710.
In general, any county may, in the discretion of the fiscal court, establish a county emergency ambulance service by either contracting for it and granting a franchise under § 164 of the Kentucky Constitution, or establish an emergency ambulance service district pursuant to KRS 108.100 et seq., or establish a county emergency ambulance service directly operated by the county. See KRS 65.710 and 67.083(3)(d) (provision of hospitals, ambulance service, programs for the health and welfare of the aging and juveniles, and other public health facilities and services). But we emphasize that the fiscal court is not mandatorily required to provide emergency ambulance service under present statutes.
We concluded in OAG 78-360, copy enclosed, that an ambulance franchise should be restricted to emergency cases only. As the court said in
Ray v. City of Owensboro, Ky., 415 S.W.2d 77 (1967) 80, "As we view the law, the city has the right to provide emergency ambulance service to its inhabitants . . . ." (Emphasis added). Thus we are still of the opinion that a fiscal court may reasonably restrict its ambulance services to emergency situations only. In your situation, the county met that qualification, since it transported the patient to the hospital under an emergency situation.
The residual question is what is the responsibility of the county for transporting an indigent from the hospital to the nursing home?
The courts have held that a county has the duty of providing for the care, treatment and maintenance of the sick and poor of the county. See KRS 67.080, 67.083(3)(d);
City of Richmond v. Madison County Fiscal Court, 290 Ky. 293, 161 S.W.2d 58 (1942) 61, 62;
City of Paducah v. McCracken County, 305 Ky. 539, 204 S.W.2d 942 (1947). Of course the county's responsibility for providing for such sick, ailing and poor people is subject to its ability to pay. There must be an item in the county budget to cover such expenses. See KRS Chapter 68. However, the fiscal court must set up an item in the county budget for the sick and poor, based upon available revenue.
The duty to provide for poor persons is not only a responsibility of municipal and county governments; it is also a duty of the state to so provide for poor persons in need of assistance; and the discharge of such duty is a governmental function.
Bowman v. Frost, 289 Ky. 826, 158 S.W.2d 945 (1942) 947. Elsewhere in Bowman, this was written:
In 21 R.C.L. 701, it is said: "The care of the state for its dependent classes is considered by all enlightened people as a measure of its civilization, and the care of the poor is generally recognized as among the unquestioned objects of public duty, but in spite of this, the duty under the common law was purely moral and not legal. There is therefore no legal obligation at common law on any of the instrumentalities of government to furnish relief to paupers. The obligation to support such persons results only from statute. The reason for this seeming barbarity of the common law was that matters of charity were thought more appropriate for the church."
It is written in 79 Am.Jur.2d, Welfare Laws, § 45, page 118, that "A county's obligation to support indigents, paupers, and poor people results only from a statutory provision imposing such a legal obligation. " That general responsibility of counties is found in KRS 67.080 and 67.083(3)(d), relating to the health and welfare of the aging, etc., as noted above.
Concerning the responsibility of the county for transporting an indigent from the hospital back to the nursing home, it is necessary to examine carefully the authorities calling for the county's aid of the sick and poor.
KRS 65.710 (ambulance service contracts) speaks in general terminology: "In order to enable cities and counties to fulfill their obligations regarding the public health, safety, and welfare. . . ." KRS 67.080(2)(a) provides that "the fiscal court shall appropriate county funds, according to the provisions of KRS 68.210 through 68.360, for purposes required by law." KRS 67.083(3)(d) provides that the fiscal court "may appropriate funds for provision of hospitals, ambulance service, programs for the health and welfare of the aging and juveniles, and other public health facilities and services." (Emphasis added). Thus KRS 65.710, with the phrase "fulfill their obligations", is couched in general and somewhat vague language. It leaves a question as to what mandated obligation exists? KRS 67.080(2)(a), relating to appropriating county funds for "purposes required by law", raises the question: What specific purposes are required by law? Then KRS 67.083(3)(d) says the fiscal court "may" appropriate funds for ambulance service and for the health and welfare of the aging. The use of the auxiliary "may" has been historically interpreted as meaning permissive. See
Department of Revenue v. Oldham County, Ky., 415 S.W.2d 386 (1967); and KRS 446.010(20). "Shall", unless the context requires otherwise, means mandatory. KRS 446.010(29). Transcending even this literal interpretation of the above statutes is the overarching principle of the precise legislative statement of county powers in
Fiscal Court v. City of Louisville, Ky., 559 S.W.2d 478 (1977). There the court wrote that the General Assembly must grant governmental powers with the precision of a rifle shot and not with the casualness of a shotgun blast. The principle of specifically stated governmental powers is inextricably intertwined with legislation relating to governmental duties.
Concerning the cases dealing with county responsibility for the sick and poor, the case of
City of Richmond v. Madison County Fiscal Court, 290 Ky. 293, 161 S.W.2d 58 (1942), contained the question as to whether the City of Richmond or Madison County had the duty to provide funds for hospitalization and medical aid for paupers residing in the city. The court held that the duty of providing for the care, treatment and maintenance of the sick and poor of the entire county is imposed upon the fiscal court, and aid should be furnished without discrimination because of the recipient's location in the county. The court added that the holding does not prevent the city from supplementing out of its own funds the aid and assistance given by the county to the poor and indigent sick who reside within the corporate limits of the city. But the court offered no formula of city-county funding. The court's holding is so general and vague that the difficulty of the practical enforcing of such ruling is apparent. Neither the county's nor city's duties are pointed out with any specificity or particularity.
In
City of Paducah v. McCracken County, 305 Ky. 539, 204 S.W.2d 942 (1947), the question of City of Richmond was raised there. Here again the court held that the statutes placed upon the city and county the duty of supporting the poor of both city and county, but subject to the county's ability to pay.
When considering the Charybdis of the demands of the poor and the Scylla of limitations of county funding, and considering the generality and vagueness of the statutory and case law above analyzed, it is our view that only the courts can determine the precise issue of the county's responsibility for returning the indigent to the nursing home.