Kansas Attorney General Opinion 1992-124

ROBERT T. STEPHAN
ATTORNEY GENERAL
September 30, 1992
ATTORNEY GENERAL OPINION NO. 92- 124
The Honorable Tim Shallenburger
State Representative, First District
2027 Fairview
Baxter Springs, Kansas 66713
Re: Constitution of the State of Kansas--Legislative--
Delegation of Legislative Power
Public Health--Emergency Medical Services--Powers
and Duties of Emergency Medical Services Board
Synopsis: In delegating power to an administrative agency,
the legislature must set standards and guidelines
limiting and directing the agency's exercise of
power. Absent such standards, there is an
unconstitutional delegation of power. The
emergency medical services act, so far as it
concerns regulation of ambulance services, sets
forth sufficient standards. Cited herein: K.S.A.
1991 Supp. 65-6101; 65-6104; 65-6110; 65-6125;
65-6127; 65-6128; Kan. Const., art. 2, § 1.
*
Dear Representative Shallenburger:
As representative for the first district, you ask our opinion
whether the Kansas emergency medical services act, K.S.A. 1991
Supp. 65-6101 et seq., so far as it relates to regulation
of ambulance services, is an unconstitutional delegation of
legislative authority to an administrative agency.
Specifically you question whether there are sufficient

standards set forth in the act to govern the agency's exercise
of discretion in setting requirements for ambulance services.
K.S.A. 1991 Supp. 65-6101 sets forth the powers and duties of
the board of emergency medical services. In relevant part, it
provides:
"(a) The bureau of emergency medical
services established pursuant to K.S.A.
74-2127, and amendments thereto, is hereby
abolished and all of the powers, duties
and functions of such bureau are
transferred to and conferred and imposed
upon the emergency medical services board
established pursuant to K.S.A. 1988 Supp.
65-6102. Except as provided by this act,
all powers, duties and functions of the
university of Kansas relating to emergency
medical services are transferred to and
conferred and imposed upon the emergency
medical services board established
pursuant to K.S.A. 1988 Supp. 65-6102."
A similar statement is found in K.S.A. 1991 Supp. 65-6104.
Several statutes specifically refer to regulation of ambulance
services. K.S.A. 1991 Supp. 65-6125 mandates that a permit be
obtained to operate an ambulance service. K.S.A. 1991 Supp.
65-6127 provides for the application for permit. Generally,
the applicant must state the territory covered, the type of
service, and a description of the equipment or facility to be
used.
The statutes do not state, however, what type of equipment or
staffing is necessary to obtain a permit. The statutes
specifically leave that determination to the board. K.S.A.
1991 Supp. 65-6110 provides, in relevant part:
"(a) The board shall adopt any rules and
regulations necessary for the regulation
of ambulance services. Such rules and
regulations shall include: (1) A
classification of the different types of
ambulance services; (2) requirements as to
equipment necessary for ambulances and
rescue vehicles; (3) qualifications and
training of attendants;
instructor-coordinators and first

responders; (4) requirements for the
licensure and renewal of licensure for
ambulances and rescue vehicles; (5)
records and equipment to be maintained by
operators, instructor-coordinators, first
responders and attendants and (6) such
other matters as the board deems necessary
to implement and administer the provisions
of this act."
K.S.A. 1991 Supp. 65-6128 expressly provides that a permit
shall not be issued unless the requirements set forth in the
rules are met.
Article 2, section 1 of the Kansas constitution provides:
"The legislative power of this state shall be vested in a
house of representatives and a senate." Kansas courts have
held that this express constitutional delegation of
legislative power to the legislature, limits the legislature's
ability to delegate functions to administrative agencies.
Generally, the courts have permitted the legislature to
delegate legislative power to an agency if the legislature
sets forth standards by which the agency is to regulate.
See, e.g. State, ex rel. v. Hines, 163 Kan. 300, 308
(1947); State, ex rel. v. Fadely, 180 Kan. 652, Syl. ¶ 7
(1957). In Wesley Medical Center v. McCain, 226 Kan.
263, 270 (1979), the court said, "[I]t has been held
permissible to enact a law in general terms and delegate the
power to apply it to an executive agency under standards and
guidelines provided by the legislature."
The emergency medical services statutes seem to provide very
little in the way of standards for the board to follow in
adopting rules and regulations concerning ambulance services,
other than a general direction that the board shall go forth
and regulate. Unanswered, at least by the express terms of
the act, are any limits on the detail and restrictions of the
regulations.
In Guardian Title Co. v. Bell, 248 Kan. 146 (1991), the
court discussed the detail in which standards must be set
forth. The court said,
"We live in an increasingly complex
society. To expect the legislature to
have time and expertise to deal with

minute details statutorily is not
realistic.
"Where flexibility in fashioning
administrative regulations to carry out
statutory purpose is desirable in light of
complexities in the area sought to be
regulated the legislature may enact
statutes in a broad outline and authorize
the administrative agency to fill in the
details.
"The modern trend, which we ascribe to, is
to require less detailed standards and
guidance to the administrative agencies in
order to facilitate the administration of
laws in areas of complex social and
economic problems." 248 Kan. at 153-54.
In upholding the constitutionality of the healing arts act
against a challenge that it lacked sufficient standards and
delegated too much power to the board of healing arts, the
court held that standards can be implied from an act's
purpose, and that the purpose of the healing arts act is to
protect the public, which implies sufficient standards.
Vakas v. Kansas Bd. of Healing Arts, 248 Kan. 589, 602
(1992).
The purpose of the emergency medical services act is
ascertainable in reading the act as a whole -- to protect the
public and provide readily available ambulance service of the
highest possible quality. This purpose implies standards --
the board may only regulate for the benefit of the public.
Regulations which are not rationally calculated to benefit the
public are suspect.
In conclusion, although the emergency medical services act
does not set forth detailed standards for the board to operate
within in making rules and regulations for ambulance services,
sufficient standards are implicit in the purpose of the act.

The act, so far as it grants the board power to regulate
ambulance services, does not constitute an unlawful delegation
of legislative power to an agency.
Very truly yours,
ROBERT T. STEPHAN
Attorney General of Kansas
Steve Phillips
Assistant Attorney General
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