A three-judge panel in the Fourth Appellate District in California’s Court of Appeal has ruled in favor of San Bernardino County in American Medical Response’s contesting of the board of supervisors’ 2023 decision to end what was that ambulance company’s three-decade-long virtual monopoly on emergency transportation in the 20,105-square mile county.
The question has now become whether American Medical Response, known by its acronym and logo AMR, will roll the dice on a further appeal to the California Supreme Court.
Throughout the first six decades and well into the seventh decade of the 20th Century, competition among ambulance companies was wide open, with different providers of emergency medical transport service operating whenever and wherever they could. By the 1940s, ambulance company owners were utilizing their access to police and fire dispatch frequencies to send their vehicles to the scenes of accidents, mayhem or medical emergencies, alerted by the communications between fire stations and firefighters or police and sheriff’s stations and officers patrolling in the field. Generally speaking, those who arrived first gathered the prize of delivering the injured party to the hospital, collecting a fee for doing so.
The owners and operators of the ambulance companies sought to locate their stations and garages or to position their ambulances during the day and night at positions that would give them an advantage at arriving first at those places where they were most needed, beating the competition. Throughout the 1950s, 1960s and into the 1970s, there were thousands of incidents where one ambulance crew working of one company or another would be traveling full tilt in one direction to get to an accident or medical emergency and would pass another ambulance owned by another company going in the opposite direction to get to a different person in need of medical assistance.
The closest thing to an industry leader in San Bernardino County at that time was Cole Schaefer Ambulance, the dominant ambulance service provider in neighboring and far more heavily populated Los Angeles County. Cole Schaefer had approaching 200 ambulances in its fleet, but more than 90 percent of them were devoted to the area west of San Bernardino County and its coverage was limited largely to Chino, Montclair, Upland and Ontario and their surrounding unincorporated county areas.
In the early 1970s, in what was then the most heavily populated area of San Bernardino County, the east and west San Bernardino Valleys stretching from Redlands and Mentone in the east to Chino and Montclair in the west, four relatively young men in their late 20s and early 30s – Terry Russ, Homer Aerts, Don Reed and Steve Dickmeyer – each owned and operated his own ambulance company. All four had been granted access to local emergency dispatch centers’ radio transmissions, and when a call for an ambulance went out, depending on where their vehicles happened to be at the time, they or the other drivers they employed would rush to the scene. In the late 1970s, the four got together and resolved to stop their blind competition and instead coordinate their responses by apportioning the shared geography they were serving into operating zones. The next step was to merge their separate companies into one – which was called Mercy Ambulance.
Fortified by the increased profits that resulted from their merger, the four directors of Mercy Ambulance were able to make political donations to members of the board of supervisors, to the various city council members in the communities where Mercy was entrenched and to the county sheriff. Within three years of its formation, Mercy Ambulance became a major political donor and player, rivaling developers and other holders of the county’s various service franchises. Using that influence, it began to squeeze smaller ambulance companies out of the San Bernardino County picture entirely, buying them out, forcing them into bankruptcy or driving them out of the area. With or without being granted exclusive operating areas, Mercy claimed a virtual monopoly in San Bernardino County, such that its only competitors were the ones willing to run just one or two ambulances in remote locations where it was not profitable for Mercy to operate.
Mercy’s advantage and profitability had become so overwhelming that it was able to create an air division, consisting of helicopter ambulances which could fly to remote areas of the desert and mountains to retrieve and transport the injured in a fraction of the time it would take to reach them by traditional ground-based ambulances. This put Mercy Ambulance on the cutting edge of the ambulance industry, which over the course of a decade-and-a-half made Russ, Aerts, Reed and Dickmeyer fabulously wealthy. By the late 1990s, the four were in their 50s and 60s and had grown weary of the bustle and intensity of providing a service with life-or-death implications 24 hours a day and 365 days per year. They sold Mercy Air Ambulance to a Japanese company and headed into comfortable retirement.
That left a vacuum, which a few companies, including some start-ups and a few with existing operations just outside the county’s periphery, sought to fill. Gradually at first and then with greater ruthlessness as it succeeded, Greenwood Village, Colorado-based American Medical Response, Inc. – AMR – took over from Mercy as the county’s preeminent emergency medical transport provider. The company took a leaf out of Mercy’s playbook and began making substantial political contributions, primarily to incumbent politicians, in an effort to ingratiate the company with the powers that be, in essence solidifying its hold on the exclusive operating zones that had by that point become an intrinsic part of the ambulance industry in California and in San Bernardino County. The smaller ambulance companies competing for a piece of the San Bernardino County pie, like those that two and three decades previously had tried to stay in place while Mercy was taking over, could not afford to buy such influence through political donations. Soon, those companies dried up and blew away, at least in San Bernardino County.
Simultaneous with granting first Mercy and then later American Medical Response the virtual monopolies those companies held, a rationale for doing so evolved among the politicians who were accepting their political donations. The de facto restrictions on other companies competing with them were not referred to as monopolies but rather as franchises and then later exclusive operating zones.
The ostensible reason for granting first Mercy and then AMR the freedom from having to compete was 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, so the reasoning went, of driving down the prices those companies charge to the point that their operations would not be profitable enough for them to remain in business. If these ambulance companies were to go out of business, there would be insufficient emergency medical transportation service available to ensure public safety. It was for this reason that those monopolistic arrangements – the exclusive operating zones – were established and perpetuated.
Criticism of both the concept of and actuality of exclusive operating zones did surface from time to time. In one notable case, in 2014, the San Bernardino County’s firefighters’ union, known as Local 935, suggested the exclusive operating approach had on occasion created critical shortages in the High Desert’s ambulance transport system, as AMR had prepositioned none or very few ambulances in certain remote areas of the county, and there were no companies competing with it to provide service in their absence.
For years, the county’s decision-makers ignored warnings issued by firefighters and others, allowing the AMR contract to be “rolled over” in what the county referred to as “a grandfathered process.” Grandfathering is defined as llowing something or someone to continue under old rules or conditions even after new, stricter rules or laws have been established, providing exemptions from the new regulations due to pre-existing status, often to ease transitions or avoid penalizing established practices.
The 2017–2018 San Bernardino County Civil Grand Jury in its final report issued in June 2018 recommended that the county solicit bids for the provision of emergency ambulance support in a wide range of so-called “exclusive service areas” for the first time in 37 years. Obliquely and politely, indeed without directly referencing the degree to which hefty campaign contributions from AMR have bought influence on the board of supervisors, the grand jury report raises the issue of the favoritism shown toward AMR over the years and the way in which the company has been allowed to adhere to older and lower standards that were in place when it obtained the ambulance service franchise while the county is insisting that the companies that would compete with AMR hew to higher and more expensive standards. This phenomenon in which the government shows such favoritism to a preexisting entity that is not shown to a newer entity is referred to as “grandfathering.”
In 2022, in what some called a long-overdue move and others said was a sweeping overreaction, the county initiated a competitive process to improve its emergency medical system, issuing a request for proposals, seeking bids from companies or entities offering ambulance service interested in obtaining a revamped exclusive contract to provided emergency medical service. The request for proposals set forth three overarching goals for its procurement process, extending to improving service delivery to customers and local public safety agencies, to establish a more efficient emergency medical service system and to make investments back into the system. There were two responses to the request for proposals, one from American Medical Response and another from Consolidated Fire Services, a joint powers authority that provides communications, dispatch, computer information systems support and geographic location information to its nine founding member agencies – 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 later-joining contract agencies – the Big Bear Fire Department, the Montclair Fire Department, the Running Springs Fire District and the San Manuel Fire Department.
In its response to the request for proposals, AMR stated it could commit 12,889 weekly unit hours to respond to calls and that it had 111 ambulances stationed throughout the service area available during times of peak system demand, with 39 additional ambulances available to meet surges. It emphasized that it was the current provider of the service with vehicle infrastructure in place and that it employed 10 managers and 18 field supervisors and a medical director familiar with the 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 inter-facility transport, and $4,392 for critical care transport.
In its proposal, ConFire said it would subcontract with Priority Ambulance, which also serves Maricopa County in Arizona and could devote 10,371 weekly unit hours to respond to calls, that it would have 93 ambulances available at peak demand, with 45 additional ambulances available to meet surges throughout the service area, and that it would establish ambulance staging locations, put on-board personnel in place and acquire vehicles upon receiving the contract. It offered an assurance it had sufficient leadership and management personnel to meet the demands of providing the service, including nine managers and 18 operations supervisors, as well as a medical director, noting it currently controlled the regional emergency services communication system. Its proposed rates for its advanced life support service were $3,547 for non-emergency and inter-facility transfer, $4,053 for emergency transport, $2,533 for non-emergency basic life transport, $3,167 for emergency basic life transport and $5,067 for critical care transport.
The county impaneled a proposal review committee, the four members of which the county stated would remain anonymous but who were, the county maintained, thoroughly knowledgeable and experienced in emergency medical response and capable of making a fair examination of the proposals.
The four evaluators scored both proposals, utilizing 14 guideposts that included response time, equipment, vehicles, personnel, disaster preparedness, deployment plans, financial and administrative qualifications and the quality, modernity and location of each competitor’s emergency dispatch center. AMR overall was given a marginally higher cumulative score than ConFire, scoring 1,519 points to 1,515. One of the evaluators had given a far higher score to American Medical Response than to ConFire which was not in keeping with the other evaluations, as three of the four judges ranked ConFire higher than AMR. ConFire received individual scores of 383, 384, 363 and 385. American Medical Response scored 373, 419, 346, 381. After considering the competition results, the county in June 2023 sent letters to both AMR and ConFire stating that because the scores for both proposers were “substantially equivalent” it intended to “move forward with negotiations” with both entities.
Over the course of those negotiations, a primary factor influencing the members of the board of supervisors was that Assembly Bill 1705, passed in 2019, allows an ambulance service provider operated by a governmental entity such as the state, a county, a city or fire protection district to receive a supplemental Medi-Cal reimbursement when the patient being transported is a Medi-Cal recipient, in addition to the payment the provider would otherwise receive for that service. By contracting with a government-operated provider like ConFire, the county would be able to capture those supplemental Medi-Cal payments, whereas if the county contracted with a private sector provider such as AMR, it would not be eligible for such reimbursements. Thus, the added “value” of the arrangement involving ConFire dictated that the county contract with it rather than AMR, despite AMR’s “marginal” overall superior score by the combined four evaluators.
At the conclusion of those negotiations in late October of 2023, the board of supervisors decided to offer ConFire the contract to provide ambulance service for San Bernardino County from October 2024 through September 2029. AMR was granted a six-month extension of its then-current contract to give ConFire time to prepare to assume its new responsibility in San Bernardino County, but the existing franchise holder nevertheless lost its bid for the new contract, despite having submitted a proposal that received a marginally superior score from the county’s evaluators.
AMR lodged a protest, alleging the county had failed to follow the selection procedures, had not adhered to requirements specified in the request for proposal, had awarded the contract to the entity that had lost in the competition, and had otherwise violated state and/or federal law. At its December 5, 2023 meeting, the board of supervisors unanimously passed a motion to deny AMR’s appeal and voted to enter into the contract with ConFire and its subcontractor, Priority Ambulance until 2019. Present at the meeting were an AMR spokesman who did not identify himself and Mike Rice, the company’s vice president of operations, who made no comments. After the meeting concluded, Rice grew vocal, charging that the board’s decision was going to put “29 fewer ambulances a day on the road than what” his company proposed. He said AMR was going to sue the county.
On April 30, 2024, American Medical Response made good on that threat, filing civil suits in both federal court and San Bernardino County Superior Court.
In the federal suit, AMR’s legal team alleged the county’s action ran afoul of the Sherman Antitrust Act, passed by the U.S. Congress in 1890 to prohibit trusts, monopolies and cartels, promote economic fairness and competition, to regulate interstate commerce and “preserve free and unfettered competition as the rule of trade for the benefit of consumers.”
The Federal District Court for the Central District of California dismissed AMR’s federal antitrust claim, without leave to amend, based on a precedent arrived at in the Parker v. Brown case which was ruled on by the U. S. Supreme Court in 1943. In that decision, the Supreme Court held that while the Sherman Act clearly forbids anticompetitive conduct by private market players, the law “did not apply to anticompetitive restraints imposed by the states.” The federal court declined to exercise jurisdiction over AMR’s state law claims. American Medical Response appealed the district court’s decision.
In the case filed in San Bernardino County Superior Court, American Medical Response filed a petition for a writ of mandate and brought a motion for a preliminary injunction seeking to enjoin the county and ConFire from proceeding with their contract. Superior Court Judge Jay H. Robinson in February 2025 ruled that the board by awarding the contract through 2029 to CALFIRE disregarded the public bidding process and had prejudiciously awarded the ambulance service contract to its favored vendor. Judge Robinson granted AMR’s motion and enjoined the county and ConFire “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 the exclusive operating areas” while the suit remains pending. The county and ConFire appeal the preliminary injunction order, asserting Judge Robinson improperly determined the county had a ministerial duty to advance only American Medical Response’s proposal to the county board of supervisors because it was the “highest-scoring” proposal. Further, the county and ConFire asserted the county did not abuse its discretion by advancing both ConFire’s and and AMR’s proposals to the board and ultimately selecting CONEFIRE as the provider. American Medical Response, asserted Judge Robinson did not err in his findings and, therefore, his decision granting the preliminary injunction should be affirmed.
That appeal went to the California’s Court of Appeal’s Fourth Appellate District, where it was taken up by a panel consisting of Justice Judith McConnell and Associiate Judges Joan K. Irion and David M. Rubin. In a 31-page opinion authored by Justice McConnell and concurred in by Judges Irion and Rubin, the troika ruled Judge Robinson erred.
“By ruling that AMR was likely to prevail on its claim because the county abused its discretion, the trial court improperly ‘substitute[d] its judgment for that of the agency,’” according to McConnell, Irion and Rubin, quoting a precedent case. “As ConFire asserts, the trial court afforded the county ‘no deference, failed to honor the presumptions in their favor, unjustifiably questioned their understanding of their own solicitation, substituted its judgment for that of [the county], questioned the wisdom of their actions, and accused [the county] of improper motivations without any direct evidence.’ This was reversible error.”
McConnell, Irion and Rubin held that “After advancing both proposals, the board heard detailed presentations from AMR and ConFire at a public hearing, followed by many public comments in support of both proposals, before selecting ConFire. AMR has not shown that this decision was irrational or disconnected from the overarching goals of the RFP process to improve service delivery to customers and partners, to establish a more efficient EMS system, and to make investments back into the system. Rather, before the board selected ConFire, each supervisor outlined the reasons he or she believed ConFire provided the best value, including that: (1) ConFire was eligible for supplemental state funding that could support the system and lower the county’s costs; (2) ConFire would improve public safety by closer ‘integration or coordination of services,’ particularly during disasters, by consolidating EMS and fire response; (3) ConFire promised better service with faster response times, and (4) representatives from cities, towns, and fire agencies affected by the decision preferred ConFire.”
It was McConnell’s, Irion’s and Rubin’s determination that “Under the discretion granted to the local agency by the EMS Act and in light of the vagueness in the RFP’s definition of highest score, we cannot hold the county’s action was ‘arbitrary, capricious, entirely lacking in evidentiary support, or unlawfully or procedurally unfair.’ Rather, after the scoring, the county reasonably found that no clear winner emerged from the RFP process. The county’s decision to advance both proposers to negotiate with the board was consistent with the RFP, which stated in subsection 2.13 that more than one proposer could advance, and with the county’s procurement manual, which contains additional guidelines for contract procurement and states the county may issue invitations to negotiate ‘with a short list of proposers to obtain best value during a RFP process.’”
The three-judge panel disagreed with Judge Robinson and American Medical Response in the assessment that the company was on a trajectory to win the case, indicating such a projection was wishful and therefore did not justify the imposition of a preliminary injunction preventing ConFire from moving into place as the county’s ambulance service provider.
“Under this highly deferential standard, we cannot conclude that AMR is likely to prevail on its claim that the county abused its discretion by awarding the contract to ConFire,” Judge McConnell wrote. “The trial court found that AMR was ‘equally likely to prevail under the abuse of discretion standard’ because the Notice of Intent to Award letter issued to AMR on October 27, 2023, ‘created ex nihilo a new procurement procedure that bore not even a passing resemblance to the procedure established by the RFP.’ The trial court then substituted its own judgment for that of the county. Without any basis, the court asserted that it appeared the county ‘desire[d] a specific outcome for the RFP’ and ‘embrace[d] a desire for performative acts in public contracting in arguing against AMR’s likely success on the merits.’ AMR repeats these unfounded accusations in its briefing before this court but provides no citation to the record in support. Although it is not this court’s role to search the record for citations, we see no indication in the record to suggest such wrongdoing. Rather, the record before this court shows the county was transparent in its decisions and did not stray outside the process set forth in the RFP. As discussed, the RFP did not preclude the county from advancing both proposals to the board for consideration and negotiation. While the RFP stated the highest scoring proposer would be recommended to the board, the RFP did not define the term ‘highest scorer’ and three of the four evaluators on the proposal review committee scored ConFire higher than AMR.”
“In short, the RFP’s plain language provides that the county may negotiate with more than one proposer and that the final determination is left to the discretion of the board based on the scoring, and the board’s determination of the proposer’s ability to meet the needs of the county and provide the best value,” according to McConnell, Irion and Rubin.
At this point, American Medical Response can roll the dice and appeal the appellate ruling to the California Supreme Court.
The California Supreme Court is not required to hear all cases that are filed with it. Rather, the California Supreme Court has discretion about which cases to review and hears about 3 percent of cases that are petitioned for review. Of the three percent reviewed, roughly 50 percent are upheld and 50 percent are reversed, according to a review by the California Constitution Center and the University of California Law Journal.