Preview
FILED: QUEENS COUNTY CLERK 06/17/2024 09:37 AM INDEX NO. 711706/2024
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 06/17/2024
STATE OFNEWYORK
DEPARTMENTOFHEALTH
In the Matter of the application of :
: AMENDED
Bay Community Volunteer Ambulance Corps., Inc., : REPORT
Applicant, : AND
: RECOMMENDATION
Pursuant to Article 30 of the Public Health Law. :
:
TO: NewYork State Emergency Medical Services Council (SEMSCO).
On July 27, 2021, the Regional Emergency Medical Services Council of New
York City, Inc. (REMSCO) denied, pursuant to PHL 3003(5), the application of Bay
Community Voluntary Ambulance Corps., Inc. (Applicant) for approval of an expansion
of its operating area in Queens County. On August 10, 2021, pursuant to PHL 3008(5),
the Applicant appealed to the State Emergency Medical Services Council (SEMSCO),
requesting that SEMSCOreverse the REMSCOdetermination and approve the
application pursuant to PHL3002(3).
Pursuant to the New York State Department of Health Bureau of Emergency
Medical Services Policy Statement 06-06 (May 2006), Administrative Law Judge Sean
O'Brien was assigned to review the appeal and make findings of fact and
recommendations to the SEMSCO. OnJuly 29, 2022, the ALJ issued his report (annexed
hereto), which recommended the REMSCOdenial of the application be upheld. On
December 7, 2022, the SEMSCOvoted to adopt the ALJ's Report and Recommendation
and denied the application.
In accordance with PHL 3002(3), the Applicant appealed the SEMSCOdenial
pursuant to CPLRArticle 78. Pursuant to a stipulation of discontinuance in that action,
FILED: QUEENS COUNTY CLERK 06/17/2024 09:37 AM INDEX NO. 711706/2024
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 06/17/2024
Bay CommunityVol. Ambulance Corps. 2
the parties agreed:
The matter is remanded to a DOHALJ to make findings solely on the basis for
[sicJ the need for additional EMSin
Bayside and to issue an amended report and
recommendation for the SEMSCOto review and vote upon. (Stipulation of
Discontinuance, So Ordered in Queens County Supreme Court, index
#707201/2023, September 26, 2023.)
The matter was referred to the Bureau of Adjudication on November 6, 2023 for the
issuance of the amended report. In addition to the record identified in ALJ O'Brien's
July 29, 2022 report and recommendations (001-008) this review has considered:
009. September 26, 2023 Stipulation of Discontinuance, So Ordered in Queens
County Supreme Court, index #707201/2023.
010. Notice of Petition and Petition to Queens Count Supreme Court, filed
April 5, 2023 (with attachments).
011. Record of August 7, 2022 SEMSCO meeting.
In accordance with the terms of the stipulation between the parties, this remand is solely
for a recommendation regarding the need for additional EMSin Bayside.
A Hearing Officer's June 23, 2021 report and recommendation to the REMSCO
found that there was such a need and recommended approval of the application.
Although the REMSCO
denied the application, there is no evidence in this record calling
the Hearing Officer's finding of need into question or suggesting that the REMSCO
rejected that finding. The REMSCOdenied the application on July 27, 2021 upon
evidence that the Applicant had plagiarized large portions of its application from another,
rival EMSprovider.
Upon the Applicant's appeal of the REMSCOdenial, ALJ O'Brien's July 29,
2022 report to the SEMSCOrecommended that it affirm the REMSCO
denial, without
making any further finding or recommendation with regard to need. The ALJ's report
and recommendation to the SEMSCOdid not mention the issue of need, nor does the
FILED: QUEENS COUNTY CLERK 06/17/2024 09:37 AM INDEX NO. 711706/2024
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 06/17/2024
Bay CommunityVol. Ambulance Corps. 3
record of the SEMSCOproceeding that led to the December 7, 2022 vote denying the
application address it. (December 7, 2022 SEMSCOmeeting transcript, pages 85-106.)
The SEMSCOadopted the ALJ's report and recommendation and affirmed the
REMSCOdenial on the basis of the evidence that Bay Community's application was
extensively plagiarized from another EMS provider, Glen Oaks. Glen Oaks had
previously applied to expand into the Bayside area. In November 2020 it had received
REMSCOapproval, including a determination of public need, only to have its
certification delayed after the Applicant herein, Bay Community, appealed the REMSCO
determination of public need to SEMSCO. SEMSCOeventually affirmed the Glen Oaks
approval on December 7, 2022, but by then Bay Community had plagiarized the very
Glen Oaks application it had objected to, using it to submit its own March 2021
application, the one under review herein and which the SEMSCOthen voted, also on
December 7, 2022, to deny.
Policy Statement 06-06, at Section C 1, provides:
One responsibility of the application process is to insure a high quality of
ownership and management of an ambulance or ALS-FR service to the degree of
attempting to identify any issues of character that would be detrimental to this
highly personal service. With this as a purpose, the REMSCO shall address
issues relative to the competency and fitness of the applicant and/or officers of the
corporation as prescribed in PHL 3005(5).
Like the REMSCOdenial before it, the SEMSCOdetermination to deny Bay
Community's application was made on the basis of the fitness and competency of the
Applicant, not because of any findings of lack of need for additional EMSin the region.
There is no persuasive evidence or opinion to refute the June 23, 2021 finding and
recommendation of the Hearing Officer to REMSCO
that there was a need for additional
EMS in Bayside as of the time of that report. That finding and recommendation,
FILED: QUEENS COUNTY CLERK 06/17/2024 09:37 AM INDEX NO. 711706/2024
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 06/17/2024
Bay CommunityVol Ambulance Corps. 4
moreover, is entirely consistent with the REMSCO'sand SEMSCO'sown subsequent
approval of Glen Oaks's application to expand into Bayside.
With regard to this issue of public need, however, it is significant that the Hearing
Officer's report and recommendation to REMSCO
was made before SEMSCOapproved
the Glen Oaks application in December 2022. The Hearing Officer explained that
because the Glen Oaks application was still under appeal at the time of his report, Glen
Oaks had not become "operational area."
in the affected For this reason, he specifically
ruled out from consideration resource"
it as an "existing because as "a solution to the
need" realized."
public it "has not been (Report and Recommendation of Hearing
Officer Timothy C. Hannigan, dated June 23, 2021, pages 7-8.) The Glen Oaks
realized,"
application has now "been however, and the SEMSCOis entitled to and should
take that development into account in reviewing public need in connection with the Bay
Community application.
Oaks'
Bay Community argues that Glen application "never stated that it could
handle applied,"
all of the calls in the territory for which [Bay Community] and that
"Glen Oaks was required to come forward with proof that it alone could reallocate its
resources to handle of the which respond."
all calls to [Bay Community] desired to
(Applicant's April 3, 2023 petition, allegations 25 & 26.) It is Bay Community, not Glen
Oaks, that bears the burden of proof for the demonstration of public need in the
application under review. (Policy Statement 06-06, supra, at Section B). Bay
Community has not met that burden because its application, which was largely copied
from Glen Oaks, did not address the effect that the Glen Oaks approval would have on a
continuing public need in Bayside, and it has offered no other evidence on that issue
FILED: QUEENS COUNTY CLERK 06/17/2024 09:37 AM INDEX NO. 711706/2024
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 06/17/2024
Bay CommunityVol. Ambulance Corps. 5
since then other than to incorrectly argue that the burden is now on Glen Oaks to prove
that there is none.
As the agencies responsible for making the final determination the REMSCO
was,
and the SEMSCOis, not bound by the findings, conclusions and recommendations of the
Hearing Officer recommending approval, or the Administrative Law Judge
recommending denial, of this application. North Shore Ambulance and Oxveen Service.
Inc. v. SEMSCO,200 AD3d 1527, 161 NYS3d420 (3rd
Dept. 2021), citing Tri-State
Ambulance Serv. v. State, 114 AD2d546, 494 NYS2d161 (3rd
Dept. 1985).
Glen Oaks' application has now been approved, and the SEMSCOcan and should
consider that development in making any determination of public need in connection with
the application now under review. This report does not otherwise amend the report and
recommendation of ALJ O'Brien, or address or make any further recommendation
regarding the REMSCOand SEMSCOstated reasons for their denials of the Bay
Community application under review.
RECOMMENDATION
The July 29, 2022 report and recommendation of ALJ O'Brien to the SEMSCO
should be amended to reflect that there was a need at that time for additional EMSin
Bayside. The report and recommendation should further be amended, however, to also
include the finding that since the REMSCO
Hearing Officer's and ALJ O'Brien's reports
were made, Glen Oaks has received SEMSCOapproval for its expansion into Bayside on
an application made before Bay Community's application. The Applicant herein has not
met its burden of proving that there continues to be a public need in Bayside. The
SEMSCO
should review and consider that finding in making its determination whether to
FILED: QUEENS COUNTY CLERK 06/17/2024 09:37 AM INDEX NO. 711706/2024
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 06/17/2024
Bay CommunityVol. Ambulance Corps. 6
deny or grant the application. The ALJ's report and recommendation should otherwise
be unchanged.
Dated: Rochester, New York
November 13, 2023
hn Harris Terepka
Administrative Law Judge
Bureau of Adjudication
FILED: QUEENS COUNTY CLERK 06/17/2024 09:37 AM INDEX NO. 711706/2024
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 06/17/2024
STATEOF NEW OF HEALTH
YORK: DEPARTMENT
In the Matter of the Application of
BAY COMMUNITY
VOLUNTEER
AMBULANCE
CORPS, INC.
Applicant/Appellant
AND
REPORT
RECOMMENDATION
A Proceeding an appeal from a decision from
involving
the Regional Emergency Medical Services Council of NewYork City, Inc.
under Public Health Law Article 30
Before: Sean D. O'Brien, Administrative Law Judge
Parties:
Bay Community Volunteer Ambulance Corps Inc., Appellant
By: Michael Lyons, President
P.O. Box 610540
Bayside, NewYork 11361-0540
The Regional Medical Services Council of NewYork City, Inc.
475 Riverside Drive, Suite 1929
NewYork, NewYork 10115
FILED: QUEENS COUNTY CLERK 06/17/2024 09:37 AM INDEX NO. 711706/2024
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 06/17/2024
. JURISDICTION and APPLICABLELAW
The granting of operating certificates to ambulance services is governed by NewYork State
Public Health Law (PHL) Article 30. In order to obtain an operating certificate, the ambulance
service must apply to the appropriate Regional Emergency Medical Services Council (REMSCO)for
approval. If there is no REMSCO
for that area, the ambulance service must apply to the state
council (SEMSCO). (PHL Section 3005[6]). Upon a showing of need, an ambulance service may
expand its services into another region, provided that the appropriate REMSCO
approves. (PHL
Section 3008). .
The Applicant, or any concerned party, may appeal the determination of the REMSCO
within 30
days and ask for an Administrative Law Judge (ALJ) to make findings of fact and recornmendations
to the SEMSCO.(New York State Department of Health Bureau of Emergency Medical Services
[DOHBEMS] Policy Statement 06-06).
The regulations governing this proceeding maybe found at 10 NYCRRPart 800. References to
statements madeat the public hearing the page number from the transcript of the public hearing
(e.g., T 1).
ONAPPEAL
RECORD
001. Appellant's Letter Appeal
002. REMSCO
Notice to DOHof Determination for BCVACEOT
003. You Tube recording of REMSCO
meeting of July 27, 2021
004. Hearing officer's Findings of Facts and Recommendations
005. Transcript of Public Hearing of May 26, 2021
006. BCVACEOTApplication dated March 21, 2021, and Supporting Docurnents
2
FILED: QUEENS COUNTY CLERK 06/17/2024 09:37 AM INDEX NO. 711706/2024
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 06/17/2024
007. DOHBEMSFitness and Competency Review dated May 25, 2021
008. Roll Call tally
sheet of REMSCO
meeting of July 27, 2021
FINDINGSOF FACTS
After careful consideration of the record, it is hereby found:
1. Onor about March 21, 2021, Bay Community Volunteer Ambulance Corps, Inc. (BCVAC)
(Applicant/Appellant) submitted an Expansion of Operating Territory (EOT) application to the
Regional Emergency Medical Services Council of NewYork City, Inc. (REMSCO). (Exhibit 006).
2. The NewYork State Department of Health, Bureau of Emergency Services (DOH
BEMS) on May 25, 2021, completed its review of the Applicant and found no bar to the individual
fitness and competency of the entity or individuals listed in the application. (Exbibit 007). .
3. A public hearing on the EOTapplication was held by REMSCO
via Zoom on May 26,
2021, per Policy Number 06-06. (Exhibit 005).
7. The Hearing Officer who conducted the public hearing issued·a written report finding
BCVAChad demonstrated public need and recommended approval of BCVAC's EOTapplication
by the fidl REMSCO.(Exhibit 004).
8. OnJuly 27, 2021, REMSCO,with a quorum present, voted on BCVAC's EOT
application, with one in favor, eight opposed and with ten delegates abstaining. The motion did not
carry. REMSCO'smembership at the time of the vote twenty six members. (Exhibits 002, 003,
008).
9. BCVACfiled a timely appeal on August 10, 2021. (Exhibit 001, 008).
FILED: QUEENS COUNTY CLERK 06/17/2024 09:37 AM INDEX NO. 711706/2024
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 06/17/2024
DISCUSSION
In reviewing the record, REMSCO,acted in accordance with the regulations, Policy Number 06-
06, and the record before it in denying Appellant's application.
The Appellant submitted its EOTapplication to REMSCOon or about March 21, 2021. It
requested an expansion of its territory to include the community of Bayside, Queens, New York,
23d 246 26* Avenue to
bounded by the Long Island Expressway to the South, Avenue, Avenue, and
the North, the Cross Island Parkway to the East and Francis Lew Boulevard to the West. (Exhibits
004, 006).
A public hearing on the EOTapplication was held on May 26, 2021, per Policy statement 06-06.
A Hearing Officer, appointed by REMSCO,
presided over the Hearing where a number of REMSCO
members were present. Both written and oral evidence was received by the Hearing Officer who
issued a report and recommendations (Report) to REMSCO
on June 23, 2021. (Exhibits 004, 005).
In the Report the Hearing Officer found REMSCO
had six months earlier approved an EOT
application for the same area submitted by Glen Oaks Volunteer Ambulance Corps (GOVAC). The
Certificate of Operating Authority (COA) was not issued to GOVAC
because BCVACappealed the
REMSCO
approval, and the appeal stayed the issuance of the COAto GOVAC. The Hearing
Officer discounted that pending appeal to review BCVAC's EOTapplication as a stand-alone
request. (Exhibit 004 pp. 7-8). .
After reviewing the application, documents and hearing record, the Hearing Officer found a
public need "...for additional services in the affected area, and those needs are not readily
services."
correctable through the reallocation or improvement of existing The Hearing Officer
recommended the Appellant's application be approved. (Exhibit 004 p. 14).
4
FILED: QUEENS COUNTY CLERK 06/17/2024 09:37 AM INDEX NO. 711706/2024
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 06/17/2024
at the REMSCO
meeting is riot persuasive. The comments by REMSOC
members and the vote by
REMSCO
are supported by the fecord.
In the present case, the Hearing Officer found credible claims of plagiarism against the Applicant
that were not adequately addressed by the Appellant at the public hearing. (Exhibit 004 at pp. 13-
14). The source documents of the plagiarism are those of another ambulance service, GOVAC,
which earlier had its EOTapplication for the same service area approved. (Exhibit 004 pp. 7-8, pp
13-14). REMSCO
acted in a tational manner in denying the Appellant's EOTapplication.
While the REMSCO
vote on Appellant's application included ten abstentions, a quorum of
REMSCO
was present. Per Policy Statement 06-06, Appendix 3, "[a]ny voting memberwho
'abstains'
form casting a vote is still counted as voting memberin attendance at the meetin! to
determine if a quorum is
present."
A REMSCO
"may
establish"
a framework regarding abstaining in
votes (Policy Statement 06-06 at p. 12) but that is not determinative in this case.
CONCLUSIONand RECOMMENDATION
REMSCO'svote to deny the Appellant's EOTapplication is supported by the record and the
REMSCO
acted within the scope of Policy Number 06-06. Recommendthe denial of the
Appellant's EOTapplication be affirmed by State Emergency Management Services Council
(SEMSCO).
DATED: July 29,2022
Albany, NewYork
SEAND. O'BRIEN
Administrative LawJudge
6
Preview
FILED: QUEENS COUNTY CLERK 06/17/2024 09:37 AM INDEX NO. 711706/2024 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 06/17/2024 STATE OFNEWYORK DEPARTMENTOFHEALTH In the Matter of the application of : : AMENDED Bay Community Volunteer Ambulance Corps., Inc., : REPORT Applicant, : AND : RECOMMENDATION Pursuant to Article 30 of the Public Health Law. : : TO: NewYork State Emergency Medical Services Council (SEMSCO). On July 27, 2021, the Regional Emergency Medical Services Council of New York City, Inc. (REMSCO) denied, pursuant to PHL 3003(5), the application of Bay Community Voluntary Ambulance Corps., Inc. (Applicant) for approval of an expansion of its operating area in Queens County. On August 10, 2021, pursuant to PHL 3008(5), the Applicant appealed to the State Emergency Medical Services Council (SEMSCO), requesting that SEMSCOreverse the REMSCOdetermination and approve the application pursuant to PHL3002(3). Pursuant to the New York State Department of Health Bureau of Emergency Medical Services Policy Statement 06-06 (May 2006), Administrative Law Judge Sean O'Brien was assigned to review the appeal and make findings of fact and recommendations to the SEMSCO. OnJuly 29, 2022, the ALJ issued his report (annexed hereto), which recommended the REMSCOdenial of the application be upheld. On December 7, 2022, the SEMSCOvoted to adopt the ALJ's Report and Recommendation and denied the application. In accordance with PHL 3002(3), the Applicant appealed the SEMSCOdenial pursuant to CPLRArticle 78. Pursuant to a stipulation of discontinuance in that action, FILED: QUEENS COUNTY CLERK 06/17/2024 09:37 AM INDEX NO. 711706/2024 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 06/17/2024 Bay CommunityVol. Ambulance Corps. 2 the parties agreed: The matter is remanded to a DOHALJ to make findings solely on the basis for [sicJ the need for additional EMSin Bayside and to issue an amended report and recommendation for the SEMSCOto review and vote upon. (Stipulation of Discontinuance, So Ordered in Queens County Supreme Court, index #707201/2023, September 26, 2023.) The matter was referred to the Bureau of Adjudication on November 6, 2023 for the issuance of the amended report. In addition to the record identified in ALJ O'Brien's July 29, 2022 report and recommendations (001-008) this review has considered: 009. September 26, 2023 Stipulation of Discontinuance, So Ordered in Queens County Supreme Court, index #707201/2023. 010. Notice of Petition and Petition to Queens Count Supreme Court, filed April 5, 2023 (with attachments). 011. Record of August 7, 2022 SEMSCO meeting. In accordance with the terms of the stipulation between the parties, this remand is solely for a recommendation regarding the need for additional EMSin Bayside. A Hearing Officer's June 23, 2021 report and recommendation to the REMSCO found that there was such a need and recommended approval of the application. Although the REMSCO denied the application, there is no evidence in this record calling the Hearing Officer's finding of need into question or suggesting that the REMSCO rejected that finding. The REMSCOdenied the application on July 27, 2021 upon evidence that the Applicant had plagiarized large portions of its application from another, rival EMSprovider. Upon the Applicant's appeal of the REMSCOdenial, ALJ O'Brien's July 29, 2022 report to the SEMSCOrecommended that it affirm the REMSCO denial, without making any further finding or recommendation with regard to need. The ALJ's report and recommendation to the SEMSCOdid not mention the issue of need, nor does the FILED: QUEENS COUNTY CLERK 06/17/2024 09:37 AM INDEX NO. 711706/2024 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 06/17/2024 Bay CommunityVol. Ambulance Corps. 3 record of the SEMSCOproceeding that led to the December 7, 2022 vote denying the application address it. (December 7, 2022 SEMSCOmeeting transcript, pages 85-106.) The SEMSCOadopted the ALJ's report and recommendation and affirmed the REMSCOdenial on the basis of the evidence that Bay Community's application was extensively plagiarized from another EMS provider, Glen Oaks. Glen Oaks had previously applied to expand into the Bayside area. In November 2020 it had received REMSCOapproval, including a determination of public need, only to have its certification delayed after the Applicant herein, Bay Community, appealed the REMSCO determination of public need to SEMSCO. SEMSCOeventually affirmed the Glen Oaks approval on December 7, 2022, but by then Bay Community had plagiarized the very Glen Oaks application it had objected to, using it to submit its own March 2021 application, the one under review herein and which the SEMSCOthen voted, also on December 7, 2022, to deny. Policy Statement 06-06, at Section C 1, provides: One responsibility of the application process is to insure a high quality of ownership and management of an ambulance or ALS-FR service to the degree of attempting to identify any issues of character that would be detrimental to this highly personal service. With this as a purpose, the REMSCO shall address issues relative to the competency and fitness of the applicant and/or officers of the corporation as prescribed in PHL 3005(5). Like the REMSCOdenial before it, the SEMSCOdetermination to deny Bay Community's application was made on the basis of the fitness and competency of the Applicant, not because of any findings of lack of need for additional EMSin the region. There is no persuasive evidence or opinion to refute the June 23, 2021 finding and recommendation of the Hearing Officer to REMSCO that there was a need for additional EMS in Bayside as of the time of that report. That finding and recommendation, FILED: QUEENS COUNTY CLERK 06/17/2024 09:37 AM INDEX NO. 711706/2024 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 06/17/2024 Bay CommunityVol Ambulance Corps. 4 moreover, is entirely consistent with the REMSCO'sand SEMSCO'sown subsequent approval of Glen Oaks's application to expand into Bayside. With regard to this issue of public need, however, it is significant that the Hearing Officer's report and recommendation to REMSCO was made before SEMSCOapproved the Glen Oaks application in December 2022. The Hearing Officer explained that because the Glen Oaks application was still under appeal at the time of his report, Glen Oaks had not become "operational area." in the affected For this reason, he specifically ruled out from consideration resource" it as an "existing because as "a solution to the need" realized." public it "has not been (Report and Recommendation of Hearing Officer Timothy C. Hannigan, dated June 23, 2021, pages 7-8.) The Glen Oaks realized," application has now "been however, and the SEMSCOis entitled to and should take that development into account in reviewing public need in connection with the Bay Community application. Oaks' Bay Community argues that Glen application "never stated that it could handle applied," all of the calls in the territory for which [Bay Community] and that "Glen Oaks was required to come forward with proof that it alone could reallocate its resources to handle of the which respond." all calls to [Bay Community] desired to (Applicant's April 3, 2023 petition, allegations 25 & 26.) It is Bay Community, not Glen Oaks, that bears the burden of proof for the demonstration of public need in the application under review. (Policy Statement 06-06, supra, at Section B). Bay Community has not met that burden because its application, which was largely copied from Glen Oaks, did not address the effect that the Glen Oaks approval would have on a continuing public need in Bayside, and it has offered no other evidence on that issue FILED: QUEENS COUNTY CLERK 06/17/2024 09:37 AM INDEX NO. 711706/2024 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 06/17/2024 Bay CommunityVol. Ambulance Corps. 5 since then other than to incorrectly argue that the burden is now on Glen Oaks to prove that there is none. As the agencies responsible for making the final determination the REMSCO was, and the SEMSCOis, not bound by the findings, conclusions and recommendations of the Hearing Officer recommending approval, or the Administrative Law Judge recommending denial, of this application. North Shore Ambulance and Oxveen Service. Inc. v. SEMSCO,200 AD3d 1527, 161 NYS3d420 (3rd Dept. 2021), citing Tri-State Ambulance Serv. v. State, 114 AD2d546, 494 NYS2d161 (3rd Dept. 1985). Glen Oaks' application has now been approved, and the SEMSCOcan and should consider that development in making any determination of public need in connection with the application now under review. This report does not otherwise amend the report and recommendation of ALJ O'Brien, or address or make any further recommendation regarding the REMSCOand SEMSCOstated reasons for their denials of the Bay Community application under review. RECOMMENDATION The July 29, 2022 report and recommendation of ALJ O'Brien to the SEMSCO should be amended to reflect that there was a need at that time for additional EMSin Bayside. The report and recommendation should further be amended, however, to also include the finding that since the REMSCO Hearing Officer's and ALJ O'Brien's reports were made, Glen Oaks has received SEMSCOapproval for its expansion into Bayside on an application made before Bay Community's application. The Applicant herein has not met its burden of proving that there continues to be a public need in Bayside. The SEMSCO should review and consider that finding in making its determination whether to FILED: QUEENS COUNTY CLERK 06/17/2024 09:37 AM INDEX NO. 711706/2024 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 06/17/2024 Bay CommunityVol. Ambulance Corps. 6 deny or grant the application. The ALJ's report and recommendation should otherwise be unchanged. Dated: Rochester, New York November 13, 2023 hn Harris Terepka Administrative Law Judge Bureau of Adjudication FILED: QUEENS COUNTY CLERK 06/17/2024 09:37 AM INDEX NO. 711706/2024 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 06/17/2024 STATEOF NEW OF HEALTH YORK: DEPARTMENT In the Matter of the Application of BAY COMMUNITY VOLUNTEER AMBULANCE CORPS, INC. Applicant/Appellant AND REPORT RECOMMENDATION A Proceeding an appeal from a decision from involving the Regional Emergency Medical Services Council of NewYork City, Inc. under Public Health Law Article 30 Before: Sean D. O'Brien, Administrative Law Judge Parties: Bay Community Volunteer Ambulance Corps Inc., Appellant By: Michael Lyons, President P.O. Box 610540 Bayside, NewYork 11361-0540 The Regional Medical Services Council of NewYork City, Inc. 475 Riverside Drive, Suite 1929 NewYork, NewYork 10115 FILED: QUEENS COUNTY CLERK 06/17/2024 09:37 AM INDEX NO. 711706/2024 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 06/17/2024 . JURISDICTION and APPLICABLELAW The granting of operating certificates to ambulance services is governed by NewYork State Public Health Law (PHL) Article 30. In order to obtain an operating certificate, the ambulance service must apply to the appropriate Regional Emergency Medical Services Council (REMSCO)for approval. If there is no REMSCO for that area, the ambulance service must apply to the state council (SEMSCO). (PHL Section 3005[6]). Upon a showing of need, an ambulance service may expand its services into another region, provided that the appropriate REMSCO approves. (PHL Section 3008). . The Applicant, or any concerned party, may appeal the determination of the REMSCO within 30 days and ask for an Administrative Law Judge (ALJ) to make findings of fact and recornmendations to the SEMSCO.(New York State Department of Health Bureau of Emergency Medical Services [DOHBEMS] Policy Statement 06-06). The regulations governing this proceeding maybe found at 10 NYCRRPart 800. References to statements madeat the public hearing the page number from the transcript of the public hearing (e.g., T 1). ONAPPEAL RECORD 001. Appellant's Letter Appeal 002. REMSCO Notice to DOHof Determination for BCVACEOT 003. You Tube recording of REMSCO meeting of July 27, 2021 004. Hearing officer's Findings of Facts and Recommendations 005. Transcript of Public Hearing of May 26, 2021 006. BCVACEOTApplication dated March 21, 2021, and Supporting Docurnents 2 FILED: QUEENS COUNTY CLERK 06/17/2024 09:37 AM INDEX NO. 711706/2024 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 06/17/2024 007. DOHBEMSFitness and Competency Review dated May 25, 2021 008. Roll Call tally sheet of REMSCO meeting of July 27, 2021 FINDINGSOF FACTS After careful consideration of the record, it is hereby found: 1. Onor about March 21, 2021, Bay Community Volunteer Ambulance Corps, Inc. (BCVAC) (Applicant/Appellant) submitted an Expansion of Operating Territory (EOT) application to the Regional Emergency Medical Services Council of NewYork City, Inc. (REMSCO). (Exhibit 006). 2. The NewYork State Department of Health, Bureau of Emergency Services (DOH BEMS) on May 25, 2021, completed its review of the Applicant and found no bar to the individual fitness and competency of the entity or individuals listed in the application. (Exbibit 007). . 3. A public hearing on the EOTapplication was held by REMSCO via Zoom on May 26, 2021, per Policy Number 06-06. (Exhibit 005). 7. The Hearing Officer who conducted the public hearing issued·a written report finding BCVAChad demonstrated public need and recommended approval of BCVAC's EOTapplication by the fidl REMSCO.(Exhibit 004). 8. OnJuly 27, 2021, REMSCO,with a quorum present, voted on BCVAC's EOT application, with one in favor, eight opposed and with ten delegates abstaining. The motion did not carry. REMSCO'smembership at the time of the vote twenty six members. (Exhibits 002, 003, 008). 9. BCVACfiled a timely appeal on August 10, 2021. (Exhibit 001, 008). FILED: QUEENS COUNTY CLERK 06/17/2024 09:37 AM INDEX NO. 711706/2024 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 06/17/2024 DISCUSSION In reviewing the record, REMSCO,acted in accordance with the regulations, Policy Number 06- 06, and the record before it in denying Appellant's application. The Appellant submitted its EOTapplication to REMSCOon or about March 21, 2021. It requested an expansion of its territory to include the community of Bayside, Queens, New York, 23d 246 26* Avenue to bounded by the Long Island Expressway to the South, Avenue, Avenue, and the North, the Cross Island Parkway to the East and Francis Lew Boulevard to the West. (Exhibits 004, 006). A public hearing on the EOTapplication was held on May 26, 2021, per Policy statement 06-06. A Hearing Officer, appointed by REMSCO, presided over the Hearing where a number of REMSCO members were present. Both written and oral evidence was received by the Hearing Officer who issued a report and recommendations (Report) to REMSCO on June 23, 2021. (Exhibits 004, 005). In the Report the Hearing Officer found REMSCO had six months earlier approved an EOT application for the same area submitted by Glen Oaks Volunteer Ambulance Corps (GOVAC). The Certificate of Operating Authority (COA) was not issued to GOVAC because BCVACappealed the REMSCO approval, and the appeal stayed the issuance of the COAto GOVAC. The Hearing Officer discounted that pending appeal to review BCVAC's EOTapplication as a stand-alone request. (Exhibit 004 pp. 7-8). . After reviewing the application, documents and hearing record, the Hearing Officer found a public need "...for additional services in the affected area, and those needs are not readily services." correctable through the reallocation or improvement of existing The Hearing Officer recommended the Appellant's application be approved. (Exhibit 004 p. 14). 4 FILED: QUEENS COUNTY CLERK 06/17/2024 09:37 AM INDEX NO. 711706/2024 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 06/17/2024 at the REMSCO meeting is riot persuasive. The comments by REMSOC members and the vote by REMSCO are supported by the fecord. In the present case, the Hearing Officer found credible claims of plagiarism against the Applicant that were not adequately addressed by the Appellant at the public hearing. (Exhibit 004 at pp. 13- 14). The source documents of the plagiarism are those of another ambulance service, GOVAC, which earlier had its EOTapplication for the same service area approved. (Exhibit 004 pp. 7-8, pp 13-14). REMSCO acted in a tational manner in denying the Appellant's EOTapplication. While the REMSCO vote on Appellant's application included ten abstentions, a quorum of REMSCO was present. Per Policy Statement 06-06, Appendix 3, "[a]ny voting memberwho 'abstains' form casting a vote is still counted as voting memberin attendance at the meetin! to determine if a quorum is present." A REMSCO "may establish" a framework regarding abstaining in votes (Policy Statement 06-06 at p. 12) but that is not determinative in this case. CONCLUSIONand RECOMMENDATION REMSCO'svote to deny the Appellant's EOTapplication is supported by the record and the REMSCO acted within the scope of Policy Number 06-06. Recommendthe denial of the Appellant's EOTapplication be affirmed by State Emergency Management Services Council (SEMSCO). DATED: July 29,2022 Albany, NewYork SEAND. O'BRIEN Administrative LawJudge 6