Attorney General's Opinion
Attorney General, Richard Blumenthal
September 25, 1995
Honorable Joyce A. Thomas
Department of Social Services
25 Sigourney Street
Hartford, CT 06106-5033
Dear Commissioner Thomas:
This is in response to your request for a formal opinion regarding the current reimbursement system for wheelchair accessible livery under the Department of Social Services (DSS) regulations enacted in 1989. Currently, DSS is reimbursing livery service providers for invalid coach services, under the State's Medicaid Program, i.e., the transportation of non-ambulatory patients, who are not confined to stretchers, to or from either a medical facility or the patient's home in non-emergency situations. These livery coach providers are not licensed by the Office of Emergency Medical Services (OEMS) and do not meet the licensure requirements for ambulance and rescue services established by the Department of Public Health and Addiction Services (DPHAS).
As we understand it, the Connecticut Ambulance Association maintains that the DPHAS licensure requirements for ambulance and rescue services under Conn. Gen. Stat. § 19a-180(a) limit the transportation of non-ambulatory individuals to invalid coach providers. In the past DSS has maintained that the definition of "invalid coach" contained within Conn. Gen. Stat. § 19a-175(k) is non-exclusive and would allow for other providers to perform this transportation service for non-ambulatory individuals. DSS' policy has been to maintain the broadest access possible for its clients within the requirements of state and federal law.
You are requesting a formal opinion as to whether DSS' regulation allowing for reimbursement of wheelchair accessible livery services that are not licensed as invalid coach providers complies with the requirements of Conn. Gen. Stat. § 19a-175(k) and § 19a-180(a).
A response to your request requires that we first address whether the services in question must be licensed under sections 19a-175(k) and 19a-180(a).
The issue of transportation of individuals with medical or physical handicaps has a long history. In Flanagan Ambulance Service, Inc. v. Public Utilities Commission, 161 Conn. 215 (1971), the sole issue was whether the medicar used for the transportation of wheelchair patients, convalescents, infirm and handicapped people and elderly who fit those categories in non-emergency service was an ambulance within the contemplation of Conn. Gen. Stat. § 20-378. That section defined an ambulance as "a motor vehicle specifically designed to carry patients." A patient was defined under that section as "an injured or ill person requiring assistance and transportation." Noting that "the statute and dictionary definitions do not specifically limit the meaning of 'ambulance' to emergency vehicles, a reading of chapter 397, Ambulance Services, leaves little doubt as to its purpose." Id. at 217. That purpose, the Court found, "is to assure emergency medical aid and safe, speedy transportation." Id. The Court construed the definition of "ambulance" as limited to motor vehicles specifically designed to carry patients needing such emergency medical aid and safe, speedy transportation. By contrast, the Court said that no emergency medical service or transportation was involved in the use of the medicar. The medicar was described as a livery service for physically handicapped individuals who require no medical assistance in transit, who desire transportation at a normal speed in order to be taken from one place to another, and who cannot comfortably avail themselves of the usual modes of public transportation by bus or taxicab. Id. The Court explained that Chapter 397 was "not intended to provide exclusive control over all services rendered to ill or injured persons", but only to control ambulance services. Id. at 218. Therefore, the Court concluded that the service was not within the control of the Ambulance Commission. See also Conn. Op. Atty. Gen. (November 6, 1974).
Thereafter, the 1974 General Assembly repealed Chapter 397 and expanded the scope of its provisions by the adoption of P.A. 74-305 as the Emergency Medical Services Act. The major effect was the dissolution of the Ambulance Commission and the transfer of its powers to the Health Commissioner and to the Commission on Hospitals and Health Care, created in 1973 pursuant to P.A. 73-117.
Where under Chapter 397, Section 20-378, a patient was limited to "an injured or ill person requiring assistance and transportation", a patient was defined in P.A. 74-305 as "an injured, ill, crippled or physically handicapped person requiring assistance or transportation." Public Act 74-305, Section 1(c), now Conn. Gen. Stat. § 19a-175(b). There was no change in the definition of an ambulance as "a motor vehicle specially designed to carry patients." Id., Section 1(d), now Conn. Gen. Stat. § 19a-175(c). The former use of ambulance service as "an organization the purpose of which is transporting patients in ambulances for hire" was broadened and expressed as "an organization which transports patients." Id., Section 1(e), now Conn. Gen. Stat. § 19a-175(d). Finally, there was added the concept of the invalid coach. This was defined to mean "a vehicle used exclusively for the transportation of non-ambulatory patients to or from either a medical facility or the patient's home in non-emergency situations or utilized in emergency situations as a back-up vehicle when insufficient emergency vehicles exist." Id., Section 1(m), now Conn. Gen. Stat. § 19a-175(k). Public Act 87-79 then redefined "invalid coach" to specify its applicability to transportation of non-ambulatory patients "not confined to stretchers." See Conn. Gen. Stat. § 19a-175(k).1
In a prior formal opinion issued to the Public Utilities Commission regarding the authority of that Commission to regulate the use of medicars for the transportation of sick and disabled persons, we opined:
The word "ambulance" is the term common to all of the operative provisions and clauses in P.A. 74-305 and consequently assists in arriving at a conclusion. An ambulance, as a motor vehicle specifically designed to carry patients, is a generic term that encompasses the concept of the invalid coach as a subcategory. This is based on the dedication of the invalid coach in P.A. 74-305 exclusively to the transportation of a subclass of patients -- the non-ambulatory patients. Such dedication and transportation is expressly limited to non-emergency situations; and the locations to and from which transportation is furnished are either the patient's home or a medical facility. Id., Section 1(m).
The physical design of the invalid coach bolsters this inference by being interrelated with the design of the ambulance. The ambulance is specifically designed to carry patients, while the invalid coach is defined as a back-up vehicle when insufficient emergency vehicles exist. Although there is no general definition of "emergency vehicles" in Section 1 of P.A. 74-305, an invalid coach that must be designed or arranged to carry non-ambulatory patients is already adapted to carrying patients in an emergency situation. To that extent, an invalid coach is required to be used for ambulance service. See Id., Section 1(e). Similarly, the same invalid coach could be used as an emergency vehicle or rescue service. Id., Section 1(n). No other category of emergency service is mentioned in these definitions or by P.A. 74-305. So it can reasonably be concluded that the design of an invalid coach must be compatible with its use for carrying patients as an ambulance in all emergency situations contemplated by the statute, leading to the inference that the invalid coach is expected to be a form of ambulance as defined in Section 1(d).
The 1974 Legislature's repeal of Chapter 397 and its substitution of P.A. 74-305 is a substantial modification of the facts on which the Supreme Court based its conclusion in the Flanagan Ambulance case in 1971. It clearly indicates that the General Assembly was aware of the Court's decision and that the legislators wanted to treat the use of the invalid coach as an adjunct function of the ambulance service defined therein.
Conn. Op. Atty. Gen. (November 6, 1994)(emphasis added).
In sum, the "invalid coach" now provides the service formerly furnished by livery operators to the class of users defined as patients under Conn. Gen. Stat. § 19a-175(b). The scope of the service so authorized is to be found in the definitions of invalid coach, patient and ambulance in section § 19a-175. An invalid coach is a vehicle used exclusively2 on either a full-time or part-time basis, for the transportation of non-ambulatory patients, who are not confined to stretchers, to or from either a medical facility or the patient's home in non-emergency situations. However, the invalid coach must be so designed that it can be used in emergency situations as a back-up vehicle where insufficient emergency vehicles exist. Conn. Gen. Stat. § 19a-175(k). A patient is defined as an injured, ill, crippled or physically handicapped person requiring assistance and transportation;3 and an ambulance is defined as a motor vehicle specifically designed to carry patients. Conn. Gen. Stat. § 19a-175(b), (c).4
The question presented is one of fact. Does the service provide invalid coach services or livery services? In short, if the wheelchair livery service is used to transport (1) non-ambulatory individuals; (2) who are patients as defined in section 19a-195(b); (3) who are not confined to a stretcher; (4) to or from either a medical facility or the patients' homes; and (5) in non-emergency situations, then the services fall within the definition of "invalid coach" under Conn. Gen. Stat. § 19a-175(k) and must be licensed pursuant to Conn. Gen. Stat. § 19a-180(a). Consistent with the statutory scheme, only those entities so licensed may transport nonambulatory patients meeting these criteria and must be dedicated exclusively to this function.5 These entities may operate on a full-time or part-time basis as long as the use is dedicated exclusively to this function. If the service provides livery to individuals who do not meet these criteria, the livery service does not meet the definitional requirements of section 19a-175(k), and need not be licensed under section 19a-180(a).
The second question which must be addressed is whether DSS may reimburse wheelchair accessible livery services that are not licensed as invalid coach providers. As discussed above, invalid coach services should not be treated the same as wheelchair accessible livery services. Pursuant to DSS' Medical Services Policy, 120C.I.b, in order to participate in the Medicaid program and receive payments directly from the Department, all providers must among other things, meet and maintain all applicable state and federal certification and licensure requirements, pertaining to the specific providers service. Thus, DSS may reimburse licensed invalid coach services for such services under the State's Medicaid program and should cease reimbursing livery service providers for invalid coach services.
Very truly yours,
Jane D. Comerford
Assistant Attorney General
1 See also Conn. Agencies Reg. § 19a-179-1(m), which defines "Invalid Coach Transportation" as "transportation to or from a private home, health care facility, or hospital for examination, diagnosis, treatment, therapy or consultation. Invalid Coach transportation is only to include the transportation of non-stretcher patients for whom the need for resuscitation, suctioning, or other emergency medical care or continuous observation is not evident."
2 The term "exclusively" means "A part from all others; only; solely; substantially all or for the greater part. To the exclusion of all others; without admission of others to participation; in a manner to exclude." Black's Law Dictionary, p. 507 (1979).
3 The regulation of stretcher patients as a form of livery service also resides within OEMS. See informal opinion to Mr. Edward Regan, Chief Transport Examiner, PUC, dated May 26, 1977; informal opinion to Douglas S. Lloyd, Commissioner, DHS, dated August 26, 1975; informal opinion to Robert Cumpstone, Manager of Motor Transport Service, DOT, dated March 21, 1995. Public Act 87-79 precluded the transportation of non-ambulatory patients who are confined to stretchers in an invalid coach, rather than an ambulance.
4 FN4. It should be noted that P.A. 74-305 did not affect the PUC's (DOT's predecessor in regulation of livery service) authority to regulate livery service for the elderly and handicapped under Conn. Gen. Stat. § 16-326b (currently Conn. Gen. Stat. § 13b-105). This is a different form of service, however, not necessarily designed for the transportation of non-ambulatory individuals.
Section 13b-105 (formerly section 16-326b) does not require that a vehicle of the invalid coach or ambulance configuration be used. It requires DOT to consider "the convenience and the physical and mental frailties of, and the care, safety and protection necessary for the best interests of, the handicapped and elderly and the general public." But the livery vehicle used need not be designed to carry non-ambulatory patients as such. As a result, the vehicle used may be a form of passenger sedan or bus that is modified sufficiently to facilitate the prescribed service on regular or irregular routes as herein indicated.
5 It is arguable that if a service provides transportation to not only medical appointments but also recreation, shopping, restaurants, etc., it is not used exclusively for invalid coach services and, therefore, does not meet the definitional requirements of section 19a-175(k) so as to need a license. The words of a statute are to be construed with common sense. Gentry v. Norwalk, 196 Conn. 596, 606 (1985). Further, a statute should be interpreted in such a way that makes the statute effective and workable rather than that which leads to a difficult and bizarre result. State v. Rodgers, 198 Conn. 53, 61 (1985). To adopt this argument would lead to the unreasonable result that only those entities providing exclusively invalid coach services are regulated so as to protect the public but those entities providing such services on a sometime basis are free from any regulation whatsoever. Such an interpretation would defeat the legislative intent to regulate ambulance services and invalid coach services as a subcategory of ambulance services. See Gentry, 196 Conn. at 606 ("A statute, of course, is not to be interpreted to thwart its purpose").