American Medical Response’s challenge of the San Bernardino County Board of Supervisors’ decision late last year to give an Arizona-based ambulance company that has partnered with the emergency dispatch center for 13 of the county’s fire departments precedence in responding to medical emergencies throughout much of the county has resulted in a judge’s decision to delay the exodus of 150 of AMR’s ambulances to points elsewhere until an indeterminate point after the scheduled October 1 service switchover date.
For well over three decades, Greenwood Village, Colorado-based American Medical Response, also known as AMR, has had a near monopoly on the provision of emergency medical transport service over a wide swath of 21,105-square mile San Bernardino County. American Medical Response partially fashioned that preeminence and partially inherited it with its buyout of Mercy Ambulance, which had effectuated its own monopoly on the county ambulance franchise. Mercy’s four owners – Homer Aerts, Don Reed, Steve Dickmeyer and Terry Russ – after engaging in the late 1960s and early 1970s in cutthroat competition against one another in the operation of their four independent ambulance companies, united under the Mercy logo. Employing Dennis Hansberger, who was then serving as a lobbyist between his first set of two and his final set of three terms on the board of supervisors, as their representative, Aerts, Reed, Dickmeyer and Russ used generous political donations to the sheriff, district attorney, members of the board of supervisors and mayors and council members of the county’s cities to obtain for Mercy Ambulance what were with only a few slight exceptions exclusive operating contracts throughout most of the county, a hold they solidified when in the 1980s they created an air ambulance wing that offered rapid service to the county’s remote desert areas.
Mercy had eliminated most or all of its competition throughout the county, particularly in the Inland and Central valleys and its incorporated cities and unincorporated area, from Chino to Montclair to Ontario to Upland to Rancho Cucamonga to Fontana to Rialto to Colton to San Bernardino to Grand Terrace to Loma Linda to Redlands. American Medical Response turned up in San Bernardino County in the very late 1970s, seeking to establish for itself a niche in the largest geographical county in the lower 48 states. At first AMR confined itself to servicing the wide-open expanse of the Mojave Desert, a place Mercy was willing to let the company operate, given that the calls were sporadic, drives were long and the profits marginal. At a certain point, American Medical Response was given the county franchise pertaining to unincorporated areas of the county, that is, those places other than where there were established cities. The lion’s share of that unincorporated area was the desert, where AMR had by that point set up a presence.
Having expended their youth in the fight against one another and their early- and mid- middle age in perfecting their monopoly, by late middle age Aerts, Reed, Dickmeyer and Russ were at last ready to enjoy the fruits of their constant efforts, at which point they were persuaded to sell out to AMR.
Through close observation of how Mercy had operated or corporate takeover osmosis or both, AMR’s executives, as soon as the company had established itself as San Bernardino County overwhelmingly largest ambulance service provider, began to emulate Mercy’s formula of making hefty and consistent political donations to the county’s incumbent politicians, recognizing the ease with which San Bernardino County officials can be influenced in their decision-making process through contributions to their election campaigns.
For more than three decades, AMR enjoyed primacy as San Bernardino County’s main ambulance service provider, as the sheer volume of money it made through those operations advantaged it beyond all of its possible competitors so that it could make donations typically in the range of $5,000 to the members of the county board of supervisors and $1,000 donations to mayors and city council members.
Coexistent with AMR holding the upper hand among ambulance service providers was the concept of exclusive operating zones, which had come into vogue prior to American Medical Response’s arrival in San Bernardino County.
Decades ago, 20,105-square mile San Bernardino County, 3,132-square mile Mono County and 10,227-square mile Inyo County, which together form a huge portion of California’s massive desert outback, had banded together to create the joint powers authority ICEMA – the Inland Counties Emergency Medical Agency – which oversees emergency service provision issues in San Bernardino, Mono and Inyo counties, most particularly in their desert regions. In a show of uncommon trust, both Mono County and Inyo County agreed to allow the San Bernardino County Board of Supervisors serve as the governing board of ICEMA. ICEMA conferred upon American Medical Response favored status in San Bernardino County that would rival that of Mercy Ambulance a generation before.
In its wisdom, the ICEMA board came to the conclusion that there should be extensive areas in San Bernardino County, Inyo County and Mono County where one ambulance company has not only primacy but a virtual monopoly in that it, and only it, is authorized and licensed to function there under normal circumstances.
The ostensible rationale for granting these monopolies is that operating ambulances is an expensive proposition, not to mention one that is crucial to public health and safety. Competition between ambulance companies has the potential, or so the reasoning goes, of driving down the prices those companies charge to the point that their operations will not be profitable enough for them to remain in business. Upon these ambulance companies going out of business, the public would be put into a position where there would be insufficient emergency medical transportation service available to ensure public safety. Thus, those arrangements – the exclusive operating zones – have been established.
In this way, San Bernardino County was divided – for purposes of ambulance service – into 26 exclusive operating zones.
Certain entities disputed that the exclusive operating zones are necessary, asserting the county’s politicians were using them as a ploy by which they filled their campaign coffers through inculcating a pay-to-play ethos into the county’s governmental function in which the company or companies favored with the exclusive operating zones made heavy contributions to their political benefactors in exchange for being granted that exclusive operational status. Some who criticized the existence of exclusive operating zones maintained the monopolistic system has long endangered public safety. One of those was the county’s firefighters’ union, known as Local 935, which as early as 2012 suggested the exclusive operating approach on occasion created shortages in the High Desert’s ambulance transport system.
For years, the county’s decision-makers ignored those warnings, responding that those shortages had never proven critical.
The overall situation with regard to emergency medical care in the field and emergency medical transport, however, has been gradually evolving for decades, with some of the more financially enabled jurisdictions in San Bernardino County having striven toward training their existing firefighting personnel with regard to lifesaving skills and rudimentary medical care, such that over the years fire departments, one by one, have made a practice of hiring firefighters who have taken fire science and paramedic courses at local community colleges.
Between 2014 and 2019, some handwriting appeared on the wall when several of San Bernardino County’s fire departments, particularly those on the west end of the county, elected to forego their long-existing arrangements with the Ontario Fire Department and to instead utilize the emergency dispatch and communications system that had been developed by the San Bernardino County Consolidated Fire Agencies – a joint powers authority consisting of the Apple Valley Fire Protection District, Chino Valley Independent Fire District, the Colton Fire Department, the Loma Linda Fire Department, the Rancho Cucamonga Fire Department, the Redlands Fire Department, the Rialto Fire Department, the San Bernardino County Fire District and the Victorville Fire Department – and four contract agencies – the Big Bear Fire Department, the Montclair Fire Department, the Running Springs Fire District and the San Manuel Fire Department.
The City of Ontario in the very late 1970s and early 1980s leapt ahead of virtually all of the governmental agencies in the region, with what was then its state-of-the-art emergency dispatch system. Multiple agencies on the west side of San Bernardino County contracted with Ontario to provide dispatch service, which was run out of the basement of that city’s fire department headquarters. But the San Bernardino County Consolidated Fire Agencies, known by its acronym CONFIRE, had in the intervening 40 years put into place an even more refined and advanced dispatch system, one that had features the Ontario Fire Department dispatch system lacked.
In 2022, with the near monopoly that the private sector/for-profit ambulance companies had on certified/licensed paramedics in San Bernardino County in the 1970s, 1980s and 1990s having come to an end, the county entertained the concept of making two radical departures from its past practices with regard to ambulance service provision: one) dispensing with merely “rolling over” what the county referred to as “a grandfathered process” that conferred most of the ambulance franchise on AMR by doing away with the exclusive operating zone concept entirely through opening up the bidding process and two) considering public agencies as potential providers of ambulance service.
In 2022 the county began to seriously consider that option and on December 20, 2022, the county released a request for proposals – a solicitation of bids – inviting prospective providers to offer ground ambulance service in 11 of the county’s 26 exclusive operating areas.
In what was a disappointment to many, no other private ambulance company than AMR responded to the request. Notefully, however, San Bernardino County’s Consolidated Fire Agencies – CONFIRE – also responded.
What the county’s action did, perhaps inadvertently, perhaps not, was to set up a direct competition between a private sector company that had established itself as one of the most prolific donors to the members of the board of supervisors and an entity which indirectly through its constituent agencies employs firefighters who belong to a public employee union that likewise has made its mark through generosity in endowing the supervisors’ political war chests.
In its response to the solicitation for bids, AMR stated it could commit 12,889 weekly unit hours to respond to calls, had 111 ambulances available during peak system demand and stationed throughout the service area backed with 39 additional available ambulances available to meet surges. It emphasized that it was the current provider of the services with vehicle infrastructure in place and 10 managers and 18 field supervisors and a medical director familiar with the comprehensive needs of the service area. The company offered rates of $3,958 for both basic life support and advanced life support, $2,834 to carry out an interfacility transport, and $4,392 for critical care transport.
In its response to the solicitation, CONFIRE said it would subcontract with Priority Ambulance, which also serves Maricopa County in Arizona and therefore could devote 10,371 weekly unit hours to respond to calls, had 93 ambulances available at peak demand, with 45 additional ambulances available to meet surges throughout the service area and that it will establish ambulance staging locations, put on-board personnel in place and acquire vehicles upon receiving the contract. It offered an assurance that it has leadership and management to meet the demands of providing the service, including nine managers and 18 operations supervisors as well as a medical director and that it controls the regional emergency services communication system. Its proposed rates for its advance life support service were $3,547 for non-emergency and interfacility transfer, $4,053 for emergency transport, $2,533 for non-emergency basic life transport and $3,167 for emergency basic life transport and CCT $5,067 for critical care transport.
What the county referred to as an “independent review panel” made up of four evaluators individually scored each proposal on 14 key areas – system requirements, response time standards, clinical performance, deployment plans, vehicles, medical supplies and equipment, personnel, hospital and community requirements, disaster preparedness/response, quality management, electronic patient care reports, centralized emergency medical dispatch capability, financial and administrative requirements qualifications and future system enhancements – for the purpose of making a recommendation to the county for the final negotiation of contract terms. The total cumulative scores, against a standard with 1,720 points maximum, favored AMR, which registered 1,519 total points against 1,515 points for CONFIRE.
There was some nuance to the scoring, in that one of the evaluators favored AMR by 35 points, 419 to 384, while the other three evaluators found in favor of CONFIRE by scores of 383 to 373, 363 to 346 and 385 to 381.
With the competition having ended in a dead heat, the institutional bias within a governmental entity – the county – in favor of another governmental entity – CONFIRE – which was competing with a private sector entity was soon evident. Of no little import was that one of CONFIRE’s constituent agencies was the county fire division. Nor did it hurt CONFIRE’s case that when it came to handing out political donations, the union representing the firefighters with the Apple Valley Fire Protection District, Chino Valley Independent Fire District, the Colton Fire Department, the Loma Linda Fire Department, the Rancho Cucamonga Fire Department, the Redlands Fire Department, the Rialto Fire Department, the San Bernardino County Fire District, the Victorville Fire Department, the Big Bear Fire Department, the Montclair Fire Department, the Running Springs Fire District and the San Manuel Fire Department and the firefighters themselves have proven every bit as and even more generous than AMR.
The county emphasized that the score differential on the evaluation of proposed service was a mere quarter of 1 percent between AMR and CONFIRE. Based on that negligible difference, the county declared the competition to have been a wash. It then provided AMR and CONFIRE with notice to enter into contract negotiations with the county and that the final contract approval rested with the board of supervisors.
After those negotiations concluded, the county purchasing division on October 27, 2023 emailed AMR a notice of intent to recommend that it be awarded a six-month contract extension running from April 1, 2024 through September 30, 2024, from the time its contract was scheduled to expire on March 31, 2024  to allow CONFIRE to get prepared to take on the contract for an initial term from October 1, 2024 through September 30, 2029.
AMR lodged a protest, alleging the county had failed to follow the selection procedures and adhere to requirements specified in the request for proposal by not awarding the contract to the entity which had prevailed in the competition, and that the county had otherwise violated state and/or federal law. The county’s purchasing agent, Ariel Gill, reviewed and considered the protest. In short order, Gill notified AMR of the county’s decision to deny the protest.
At the December 5, 2023 board of supervisors meeting at which the decision to enter into the five-year contract with CONFIRE was scheduled to be discussed and voted upon, Board of Supervisors Chairwoman Dawn Rowe emphasized that by choosing CONFIRE, a public agency, to provide ambulance service, the county would, under the provisions of Assembly Bill 1705, be eligible to receive intergovernment transfer funds made available through the State of California’s Department of Health Care Services in accordance with state financial assistance through what is referred to as the Public Provider Ground Emergency Medical Transportation Program. That program provides increased reimbursements for emergency medical transportation provided by eligible noncontracted public, general emergency medical transportation providers. Since CONFIRE is a public agency and AMR is not, Rowe said, choosing CONFIRE as the county’s ambulance provider would provide the county with those intergovernmental transfer funds. Since that funding would not be available if the contract went to AMR, Rowe asserted, the contract with CONFIRE offered the county the “best value.” Rowe further argued that three of the four individuals evaluating the competing bids ranked CONFIRE higher than AMR, which she said justified awarding the contract to CONFIRE. The board voted unanimously to support Supervisor Jesse Armendarez’s motion, seconded by Supervisor Curt Hagman, to deny AMR’s protest and award the five-year contract to CONFIRE.
On February 2, 2024, AMR, represented by attorneys Stephen Larson, Jonathan Phillips, Mehrunisa Ranjha and Benjamin Falstein filed suit in the form of a complaint and petition for a writ of mandamus in Riverside Federal Court, naming the County of San Bernardino, the San Bernardino County Board of Supervisors, the Inland Counties Emergency Medical Agency and Consolidated Fire Agencies [CONFIRE] as defendants and Consolidated Fire Agencies as the real party in interest.
According to Larson, Phillips, Ranjha and Falstein, the county failed to abide by the strict requirements contained in its own request for proposals in that under the rules of the competition, the county was “required to award the exclusive contract to the bidder with the highest scoring proposal.”
Despite what was supposed be a highly regulated and precisely controlled competition, according to Larson, Phillips, Ranjha and Falstein, the “county was willing to disregard this mandatory process in order to award the contract to its pre-ordained preferred provider – CONFIRE – regardless of whether it had submitted the best bid. In other words, the process actually employed by the county was not truly competitive at all.”
Larson, Phillips, Ranjha and Falstein maintain “AMR’s proposal received the highest score based on the scoring metrics specified in the RFP [request for proposals]. The independent, non-biased review committee administering the request for proposals process gave AMR’s proposal a higher score than CONFIRE’s proposal based on scoring criteria set forth in the RFP.”
Moreover, according to Larson, Phillips, Ranjha and Falstein, any provider with a proposal that failed to meet the minimum qualifications specified in the request for proposals could not be considered at all. This was the case with CONFIRE, the four lawyers maintained in the suit. They pointed out in the suit that under the county’s own specified standards to fulfill or hold the franchise contract, competing applicants are required to have provided emergency ambulance service to a population of at least one million residents over a period of at least five of the previous seven years.
According to Larson, Phillips, Ranjha and Falstein, “[I]t is undisputable that CONFIRE, as well as its private subcontractor, Priority, had failed to meet the basic requirements set forth in the request for proposal. Because of this failure, disqualification was mandatory under the request for proposals, and CONFIRE’s proposal should never have received consideration by the county, let alone the county’s recommendation for further negotiation and ultimate award. CONFIRE’s proposal represented that Priority had sufficient organizational experience based on the ambulance services Priority provides in its largest service area, Maricopa County, Arizona. Priority does not have a contract as the primary ambulance provider with Maricopa County itself; instead, Priority contracts with five municipalities that together comprise only a portion of Maricopa County. Priority’s contract with the City of Chandler, Arizona only commenced in or about January 2022 and thus fails to satisfy the durational requirement in the RFP, which requires the bidder to have continuously provided ambulance services for five of the last seven years. Additionally, under that contract, Priority only provides the physical ambulance and an EMT [emergency medical technician] driver – whereas the city provides the licensed paramedic on board the ambulance – and thus Priority itself is not capable of providing advanced life support services as required by the request for proposals. Priority’s contract with the City of Scottsdale, Arizona only includes the provision of basic life support services and does not include the provision of advanced life support services required by the request for proposals, which are instead provided by the local fire department.”
According to Larson, Phillips, Ranjha and Falstein, “CONFIRE’s proposal should not have been considered to begin with, as it failed to fulfill basic minimum requirements mandated by the request for proposals.”
According to Larson, Phillips, Ranjha and Falstein, “[T]he board of supervisors voted to award the contract to the losing bidder, CONFIRE. By negotiating with and ultimately awarding the contract to an ambulance services provider with an inferior bid, the county and its board of supervisors acted contrary to the RFP and state law—and, consequently, outside the narrow confines of their antitrust immunity.”
The only circumstance under which the county could enter into contract negotiations with CONFIRE, the losing bidder would have been if AMR, the winning bidder, had refused to negotiate with the county, according to the lawsuit.
“The request for proposals specifies that the review committee would only recommend the highest-scoring bidder for final negotiation of contract terms with the county,” according to Larson, Phillips, Ranjha and Falstein. “Negotiations may only commence with the next highest-rated bidder if the county terminates negotiations with the highest-scoring bidder for failure to negotiate.” AMR did not refuse to negotiate, and it did everything it was supposed to do and competed for the contract under the specifications set by the county, according to Larson, Phillips, Ranjha and Falstein.
AMR protested and its protest was denied, according to the suit, while the county and the county board of supervisors maintained the supervisors had discretion in the selection process that allowed its members to collectively “disregard the evaluation prepared by the non-biased review committee and further empowered the county and board of supervisors to disregard the request for proposal’s mandatory requirement that only the highest scoring proposal would receive consideration for award of the contract.”
With the suit pending, the question has become whether American Medical Response was going to be canceled out as the county’s primary ambulance service provider and CONFIRE is to take over. Aside from that is the question of whether that transition, if it is to be made, will be made on the timetable previously laid out, with CONFIRE taking over on October 1.
CONFIRE is represented by attorneys Lindsay Moore, Andrew Schouten and Nathan Cooke.
Devin Senelick of the law firm Hooper Lundy & Bookman represents the Inland Counties Emergency Medical Agency.
Yesterday, on September 12, that question was taken up not in federal court but in the courtroom of Superior Court Judge Jay H. Robinson. It is American Medical Response’s contention that it is not only possible but probable it will prevail in its legal challenge of the board of supervisors’ granting of the five-year contract to CONFIRE. As such, the company maintains, forcing it to shut down now, shutter its facilities and move its ambulances and equipment would be onerous if it at some future date will need to reopen those facilities and bring those vehicles and equipment back.
Judge Robinson, considering those arguments, granted AMR’s motion for a preliminary injunction, suspending the transition process while the legal challenge proceeds.
Judge Robinson said after “evaluating American Medical Response of Inland Empire’s (‘AMR’) likelihood of prevailing on the merits of its claims,” his conclusion was that there were “interim harms which AMR would suffer should the [federal] court deny the injunction [and] the interim harms which county defendants and CONFIRE would suffer should the court grant the injunction,” such that “the injunction ultimately promotes the public interest in open and fair competitive bids.”
According to Judge Robinson, “Respondents and defendants County of San Bernardino, County of San Bernardino Supervisors, and Inland County Emergency Medical Agency are hereby enjoined and restrained during the pendency of this action from performing, proceeding under, or implementing services pursuant to, the contract for advanced life support and basic life support ground ambulance services, interfacility and critical care transport services for exclusive operating areas in San Bernardino County, Contract No. 23-1282.”
It thus appears that until the matter is fully addressed in federal court, AMR ambulances will remain in place in San Bernardino County.
-Mark Gutglueck