PA PUC to Revise Policy Statement on Scope of Exemption from PUC Regulation for the Transportation of Injured or Ill Persons

The Pennsylvania Public Utility Commission recently proposed revisions to the policy statement, at 52 Pa. Code §41.11, that defines the scope of the exemption, from Commission regulation, for the provision of transportation service to injured or ill persons for medical treatment.

The proposed revisions, which were published in the Pennsylvania Bulletin and issued for public comment on June 11, 2011, are intended to eliminate confusion about the application of the policy to non-emergency transportation of injured or ill persons.

The Commission’s jurisdiction over property and passenger carrier transportation service is subject to certain exemptions, including an exemption associated with the transportation of injured, ill or dead persons.  More specifically, the Commission’s definition of “Common Carrier by Motor Vehicle” at 66 Pa.C.S.A. §102 specifically exempts, “[a]ny person or corporation who or which furnishes transportation for any injured, ill or dead person.”  While this exemption has long been recognized to exclude from Commission jurisdiction emergency transportation of people by ambulance, it has been more problematic with respect to the medically-related transportation of passengers for non-emergency purposes.

A series of cases and prior versions of the policy statement have attempted to address this question, but have not fully clarified the scope of the Commission’s jurisdiction in this area.  For example, in Chappell v. Pa. P.U.C., 425 A.2d 873 (Pa. Cmwlth. 1981), the service at issue was the transportation of non-ambulatory injured or ill passengers to physicians’ offices for medical treatment using either ambulances or station wagons.  The Commission held that the injured or ill exemption applied only to emergency medical transportation.  In reversing the Commission, the Commonwealth Court interpreted the exemption more broadly.  It held that the exemption applies to “ . . . transportation which is afforded persons who, because they are injured or ill, require transportation for medical treatment.  In other words, the statute exempts the transportation of patients for purposes of medical treatment.”  Chappell, at 876.  The Court did not define the parameters of the non-emergency medical transportation service subject to the exemption, however.

Shortly thereafter, in Triage, Inc. v. Pa. P.U.C., 450 A.2d 790 (Pa. Cmwlth. 1982), the Court held that a Certificate of Public Convenience was needed by a carrier whose services included the transportation of both ambulatory and non-ambulatory passengers for both medical and non-medical purposes.  The Court distinguished the facts in Triage from those in Chappell as follows:  “[a] careful examination of Triage’s application reveals, however, that it does not match Chappell in two key particulars: (1) it is intended to be a taxi service, not an ambulance service, and (2) it does intend to transport ambulatory individuals.”  Triage, at 792.  Among other things, Triage suggested that to be eligible for the exemption, the passengers must be non-ambulatory.

In Pa. P.U.C. v. Medi-Vans, Inc., Docket No. C-903059 (Order entered April 18, 1991), the Commission filed a complaint against a carrier that was providing paratransit services to non-ambulatory patients to and from physician’s offices, hospitals and nursing homes.  The Administrative Law Judge (“ALJ”) dismissed the complaint preliminarily on the basis that the service fell within the Chappell exemption and, therefore, was beyond the Commission’s jurisdiction.  The Law Bureau challenged the ALJ’s ruling on the ground that transportation to a physician’s office did not meet the definition of “health care facility” required under the then operative policy statement.   In reversing the ALJ’s dismissal of the complaint, the Commission discussed uncertainty that existed about the definition of the term “health care provider” in the existing policy statement, and whether trips to physician’s offices fell within the exemption.  It specifically acknowledged that policy statement was in need of revision on the issue.  It determined, nonetheless, that there was sufficient guidance in the Chappell and Triage decisions such that the complaint should not have been dismissed preliminarily.

Subsequent to Medi-Vans, Inc., the Commission revised its policy statement by, among other things, adding definitions for health care facility, health care institution, health care provider and health maintenance organization.  The operative sections of the policy were also revised to state as follows:

(b) If the following circumstances are present, the Commission will regard that operation as beyond the regulatory jurisdiction of the Commission, under 66 Pa.C.S. §102(9) (relating to definitions):

(1) The transportation is performed by a carrier providing paratransit service utilizing specialized equipment

(2) The passengers are persons, including patients, who – because they are injured of ill – require transportation to or from health care providers, as defined in this section.

52 Pa. Code §41.11(b).

The Commission now provided its own definitions for health care facility, health care institution, health care provider and health maintenance organization.  The revised policy statement did not, however, expressly include the Commonwealth Court’s previous holdings on the ambulatory vs. non-ambulatory patient question, and it appeared to retain, based on the definitions included, the exclusion of trips to physician’s offices from the “injured or ill” exemption.

Several subsequent decisions further addressed the “injured or ill” exemption, yet did not fully clarify certain issues that remain unsettled.  In Application of White Line Taxi and Transfer Co., Inc., Docket No. A-00000990, F004 (Order entered June 17, 1992) the Commission held that the use of Suburban wagons for the proposed paratransit service failed to meet the definition of “specialized equipment” found at Section 41.11(b).  The Commission also noted that the Applicant did not indicate whether service was to be provided for ambulatory or non-ambulatory passengers.  Accordingly, the proposed service was found to fall outside of the “injured or ill” exemption.  In Connellsville Taxi Service, Inc. v. Central Cab Co., Docket No. A-101803C901 (Order entered May 22, 1992), the Commission interpreted the revised policy statement to again hold that transportation to a physician’s private office was not covered by the exemption.  Finally, in Petition of Tri-State Emergency Systems, Inc. d/b/a Emergy Care for Declaratory Order, Docket No. P-00961060 (Order entered June 10, 1996), the Commission provided guidance on the meaning of “specialized equipment.”  It noted that this required basic life support equipment and oxygen, as well as staffing the vehicle with a medical attendant.  The Commission also acknowledged, however, that the then-current policy statement was silent on the issue of the ambulatory status of passengers to be transported.

Against this background, and recognizing that there still exists a level of confusion in this area, the Commission commenced the 2011 proposed revisions to the policy statement: “We find that the current policy statement should be revised to provide greater regulatory certainty to passenger carriers and to better conform to past Commonwealth Court and Commission precedent.”  Revision to 52 Pa. Code §41.11 Regarding Ill or Injured Exemption to Common Carrier by Motor Vehicle Service; Docket No. M-2011-2163034.  The Commission identified a number of specific areas that it believes must be further clarified, including: (1) the types of passengers covered by the exemption; (2) the distinction between transportation to physicians’ offices and other locations where medical treatment is provided; (3) the types of specialized equipment and trained staffing required; and, (4) the ambulatory vs. non-ambulatory patient issue.

The proposed policy statement is intended to address and provide clarification about the requirements in these various areas in order to qualify for the exemption.   In sum, the proposed revisions establish as follows: (1) the exemption applies to the transportation of injured or ill persons to and from physician’s offices; (2) passengers must be non-ambulatory; (3) vehicles used must be either ambulances or, by their nature and equipment, have ambulance-like characteristics; (4) in addition to the driver, the vehicle must be staffed by at least one person with some form of first responder or other medical training; and (5) the person must be transported to a health care facility or physician’s office at which reviewable “clinically related health service” is provided.

The Commission believes these revisions will provide significant clarification to an area in which a great deal of uncertainty has long existed.  A 30 day public comment period commenced on June 11, 2011.  The Commission will issue final revisions following its review of any public comments received.

A complete copy of the proposed revised policy statement is attached.