Governor Hochul has signed bill S1210 / A6401 as Chapter 462 of the laws of 2021. Essentially, this new section of the General Municipal Law (GML) allows a LOSAP sponsor to adjust the department responses category of its point system to recognize that some groups of volunteers may be restricted from responding to certain types of calls.
As a reminder, the department responses category provides that 25 points are earned by a volunteer who attends a minimum number of the fire department’s total calls for the year. For departments that also have a rescue/ambulance unit, an additional 25 points can be earned for attending a minimum number of those calls as well. The minimum number is based on a percentage of the total calls for the year. For example, if a department has 400 calls during a year, a volunteer must respond to 40 (10%) in order to earn 25 points. The department responses category is unique from other categories since it is an all-or-nothing category – either a volunteer responds to at least the minimum number and earns 25 points or does not and earns zero (0) points.
If a volunteer is restricted from attending some calls, it limits the opportunity to respond to the minimum to earn the 25 points. For example, if a certain volunteer is restricted from responding to 50 of those 400 total calls, that volunteer would have to respond to 40 of the other 350 calls – a little more than 11%. The new law allows a LOSAP sponsor to change the requirement for this volunteer from 10% of 400 calls to 10% of 350 calls, or 35, to earn 25 points.
If a LOSAP sponsor chooses to adjust its point system for this change, no referendum is required - only a resolution of the LOSAP sponsor governing board (at least 60% approval) is needed. However, it states that an adjustment to the point system must be in response to written emergency response protocols adopted by the sponsor. (The use of the term sponsor here is potentially problematic, as a village or town isn't likely setting emergency response protocols for a department.) The statute elaborates that these protocols may be related to a determination made by the district/department physician regarding the duties that a volunteer may be assigned. Since the word may is used, that implies it is not the only determining factor that could be used when a sponsor adopts these written emergency response protocols.
The adjustment would become effective the January 1st following the date the sponsoring board adopts the resolution, unless the written emergency response protocols were enacted as a result of a state disaster emergency. The wording of the amendment is not completely clear regarding this case – if the amendment can be made effective in the year the resolution is adopted by the board, or when the written emergency response protocols were adopted, or even when the state disaster emergency was declared. The takeaway is there is some flexibility allowed in this case.
It is important to be clear about how this amendment is implemented - it must be adopted by the municipal sponsor. A fire department that is interested in changing the point system must work with the sponsoring village, town, city or fire district to actually make the change.
Initially, this bill was meant to address the staffing challenge fire departments were facing during the COVID-19 pandemic. Many departments were limiting certain at-risk volunteers from responding to calls. Although this was for the safety of those volunteers, these limitations made it more difficult to earn points under the department responses category. However, this new law is not necessarily tied to the COVID-19 pandemic or any state disaster emergency (although it can be); it is a permanent change to the statute that can be adopted at any time.
We could see this new statute being helpful, or at least provide clarity in the following situations:
Of course, there could be others we aren’t thinking of - reply in the comments with your suggestions!
The full text of the new statute, including the Summary and Justification are printed at the conclusion of this post. The Summary and Justification make it fairly clear that the intent is to allow a sponsor to credit the points for department responses on an individual basis, not necessarily based on the department’s total number of calls. In the view of the legislators that sponsored the bill, this creates “a more equitable and efficient system.”
Since our expertise is not in fire department operations, we won’t discuss how a specific department operates and if an emergency response protocol is efficient or not. We are certain there are many factors to be considered and each department has its own unique set of parameters and challenges to work through.
Ultimately the volunteer fire service in New York is diverse, and a one-size-fits-most statute means those on the outside of “most” have a hard time getting the point system to work with the unique ways they must operate to protect their residents. This change may offer some departments the flexibility it needs to reward volunteers with LOSAP points in a manner that is consistent with the department’s operational requirements.
One thing is certain, this amendment is a departure from how the department responses category has always been administered. In the past, every active volunteer firefighter of a fire department was expected to respond to the same number of calls in order to earn the same number of points (i.e., 25). If this change is implemented, some volunteers will earn 25 points for responding to fewer calls than other volunteers.
We foresee additional administrative challenges:
Care should be taken before a sponsor decides to implement this change. Certainly, the sponsor should review this statute and any proposed changes it with its legal counsel.
The full text of the new law follows:
SUMMARY OF PROVISIONS:
Amends General Municipal Law by adding a new subparagraph (q) to address developments in how volunteer fire departments respond to emergencies by allowing programs to calculate percentages based on the total number of calls an individual was dispatched.
The length of service award programs (LOSAP) are pension-like programs intended to help recruit, retain, and reward volunteer firefighters and ambulance workers for serving their communities. New York requires volunteers to earn 50 points in a given year to receive these benefits. One of the ways firefighters can earn points is by responding to emergency calls. However, since COVID, emergency precautions have been adopted to protect vulnerable volunteer firefighters from being exposed to the virus. Specifically, fire departments have had to reduce how many firefighters respond to calls.
This bill recognizes that not every emergency call requires all volunteer firefighters to be dispatched. The current LOSAP point system does not reflect the complexity of emergency response protocols, which only results in more emergency vehicles on our streets and represents a less efficient system. Updating the law from using a percentage of the total number of calls the department was dispatched to in calculating LOSAP points, to the total number of calls an individual was dispatched to will create a more equitable and efficient system.
Section 217 of the general municipal law is amended by adding a new subdivision (q) to read as follows:
(q) The program sponsor may make adjustments to the participation in department responses point system category provided for in paragraph(vi) of subdivision (c) of this section in the event that such program sponsor adopts written emergency response protocols setting different emergency response requirements for the fire department, fire companies, squads and units thereof such that certain participants are not permitted to respond and are restricted from responding to all non-emergency rescue and first aid squad calls and/or all emergency rescue and first aid squad calls. Such restrictions on response may relate to determinations made by the district physician or department's physician as to the duties that may be assigned to certain personnel. In the event that the program sponsor adopts different response requirements for different groups, participants in those groups shall be required to respond to the minimum number of emergency calls assigned to their group by applying the percentage provided for in paragraph (vi) of subdivision (c) of this section. Notwithstanding the provisions of section two hundred sixteen of this article, a point system amendment to address written emergency response protocols may be adopted by the affirmative vote of at least sixty percent of such governing board, without referendum. Such amendment shall only take effect as of the first day of January next succeeding the completion of the proceedings required for adoption of the amendment and shall only apply prospectively unless the new written emergency response protocol is adopted in order to address a state disaster emergency, as such term is defined in section twenty of the executive law, and applicable to the county or counties in which the fire department operates, in which case such amendment may be applied in the year adopted.