HomeMy WebLinkAbout00-1004 DierkersOPINION OF THE COMMISSION
Before: Daneen E. Reese, Chair
Austin M. Lee, Vice Chair
Julius Uehlein
Louis W. Fryman
John J. Bolger
Frank M. Brown
Susan Mosites Bicket
DATE DECIDED: 2/1/2000
DATE MAILED: 2/11/2000
Peg J. Dierkers, Ph.D
Deputy Secretary for Medical Assistance Programs
Department of Public Welfare
P.O. Box 2675
Harrisburg, PA 17105 -2675
00 -1004
Re: Lobbying, Principal, Lobbyist, State Agency, Department of Public Welfare,
Medicaid, Medical Care Advisory Committee, Medical Assistance Advisory
Committee, Member, Exemption, Compensation, Traveling Expenses.
Dear Dr. Dierkers:
This Opinion is issued in response to your advisory request received on November
29, 1999.
I. ISSUE:
Whether members of a medical care advisory committee who do not receive
compensation other than traveling expenses are exempt from the reporting requirements of
the Lobbying Disclosure Act if they are not otherwise registered lobbyists, and whether the
members who are registered lobbyists must include the time spent at the committee's
meetings and the amount of reimbursed travel expenses in satisfying the requirements of
the Lobbying Disclosure Act.
II. FACTUAL BASIS FOR DETERMINATION:
As Deputy Secretary for Medical Assistance Programs for the Department of Public
Welfare (DPW), you request an advisory under the Lobbying Disclosure Act, 65 Pa.C.S.
§1301 et seq. (Act).
Dierkers, 00 -1004
Page 2
You state that pursuant to federal regulations, a state Medicaid agency plan must
provide for a "medical care advisory committee" to advise the Medicaid agency director
about health and medical care services. 42 C.F.R. §431.12(b). Per the federal
regulations, a medical care advisory committee must include "board- certified physicians
and other representatives of the health professions who are familiar with the medical
needs of low- income population groups and with the resources available and required for
their care," and "members of consumer groups, including Medicaid recipients, and
consumer organizations such as labor unions, cooperatives, consumer - sponsored prepaid
group practice plans, and others. . . ." 42 C.F.R. §431.12(d)(1) -(2). Further, The
committee must have opportunity for participation in policy development and program
administration, including furthering the participation of recipient members in the agency
program." 42 C.F.R. §431.12(e). Finally, the agency must provide the committee with staff
assistance and independent technical assistance as needed and with financial
arrangements, if necessary, to enable the participation of recipient members. 42 C.F.R.
§431.12(f).
You state that in accordance with the aforesaid federal regulations, DPW
established the "Medical Assistance Advisory Committee" (MAAC). The Secretary of DPW
appoints the members of the MAAC on a rotating or continuous basis. You have submitted
a copy of the Operating Guidelines for the MAAC and its Subcommittees, which document
is incorporated herein by reference. In general, the Operating Guidelines pertain to
MAAC's authority, mission, purpose, membership, officers, executive group, meetings,
quorum and voting, subcommittees, travel and subsistence for members, and staff support
through the Office of Medical Assistance Programs (OMAP). It is noted that the Deputy
Secretary of OMAP serves as the Ex- Officio (without a vote) Co -Chair of the MAAC. The
Secretary of the Department of Health or his /her designee also serves as an Ex- Officio
(without a vote) member. The Secretary of DPW may designate additional Ex- Officio
members to serve on the MAAC.
You state that members of the MAAC, some of whom are registered lobbyists, are
particularly concerned about whether the amount of their time and any reimbursed
traveling expenses for attending MAAC meetings are to be considered under the Act. You
ask whether the MAAC members who are lobbyists would be required to report an "in -kind
dollar equivalent" for their time even if such members would not request travel
reimbursement for MAAC activities.
You state that DPW's Office of Legal Counsel interprets Section 1306 of the Act as
providing an exemption to individuals who do not receive compensation, other than
traveling expenses, for lobbying. The Office of Legal Counsel concludes that MAAC
members who are not otherwise registered lobbyists are not required to register as
lobbyists merely because they are part of the MAAC. In addition, with respect to the
MAAC members who are registered lobbyists for other purposes, the Office of Legal
Counsel believes that the time spent at MAAC meetings and the reimbursement of travel
expenses would not be counted for reporting purposes under the Act.
Since OMAP provides staff support as a liaison with the officers of the MAAC and
standing Subcommittees, OMAP is requesting confirmation of DPW's interpretation of the
Act as it relates to the MAAC.
On January 7, 2000, the Director of the Bureau of Policy, Budget and Planning of
OMAP provided additional information relative to your request. The Director stated that
reimbursed travel expenses are the only payment which the MAAC members receive. Not
all of the members request travel reimbursement, but the Commonwealth pays for the
travel expenses of those members who do so.
By letter dated December 6, 1999, you were notified of the date, time, and location
of the public meeting at which your request for an Opinion was to be considered.
Dierkers, 00 -1004
Page 3
At the public meeting on February 1, 2000, an Assistant Counsel to DPW and the
Director of the Bureau of Policy, Budget and Planning within DPW's Office of Medical
Assistance Programs appeared and offered commentary. It was submitted by these DPW
representatives that: (1) the MAAC is not considered to be an association, but rather, is
considered to be an advisory committee to the State Medicaid agency; (2) the MAAC does
not employ lobbyists; (3) the members of the MAAC are appointed by the Secretary of the
Department of Public Welfare based upon their background and knowledge of the health
care needs of poor people; and (4) the MAAC membership includes consumers of medical
assistance services, medical assistance service providers, representatives from advocacy
groups, and representatives from professional medical associations.
III. DISCUSSION: It is initially noted that pursuant to Section 1308(c) of the Act in
conjunction with Sections 1107(10) and 1107(11) of the Ethics Act, 65 Pa.C.S.
§ §1107(10), (11), advisories are issued to the requestor based upon the facts which the
requestor has submitted. The Commission does not engage in an independent
investigation of the facts, nor does it speculate as to facts which have not been submitted,
in issuing advisories. It is the burden of the requestor to truthfully disclose all of the
material facts relevant to the inquiry. An advisory only affords a defense to the extent the
requestor has truthfully disclosed all of the material facts.
In order to decide the issues which you have raised, this Commission must review
the pertinent definitions and substantive provisions of the Act and related Regulations.
Section 1303 of the Act defines "lobbying" as follows:
"Lobbying." An effort to influence legislative action or
administrative action. The term includes:
(1) providing any gift, entertainment, meal, transportation or
lodging to a State official or employee for the purpose of
advancing the interest of the lobbyist or principal; and
(2) direct or indirect communication.
65 Pa.C.S. §1303.
The key terms "legislative action," "administrative action," "direct communication,"
and "indirect communication" that are within the definition of "lobbying" are themselves
defined as follows:
"Legislative action." An action taken by a State official or
employee involving the preparation, research, drafting,
introduction, consideration, modification, amendment,
approval, passage, enactment, tabling, postponement, defeat
or rejection of legislation; legislative motions; overriding or
sustaining a veto by the Governor; or confirmation of
appointments by the Governor or of appointments to public
boards or commissions by a member of the General Assembly.
"Administrative action." Any of the following:
(1) An agency's:
(i) proposal, consideration, promulgation or
rescission of a regulation;
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(ii) development or modification of a guideline or
a statement of policy; or
(iii) approval or rejection of a regulation.
(2) The review, revision, approval or disapproval of a
regulation under the act of June 25, 1982 (P.L.633, No.181),
known as the Regulatory Review Act.
(3) The Governor's approval or veto of legislation.
(4) The nomination or appointment of an individual as an
officer or employee of the Commonwealth.
(5) The proposal, consideration, promulgation or rescission of
an executive order.
"Direct communication." An effort, whether written, oral or
by any other medium, made by a lobbyist or principal, directed
to a State official or employee, the purpose or foreseeable
effect of which is to influence legislative action or
administrative action.
"Indirect communication." An effort, whether written, oral
or by any other medium, to encourage others, including the
general public, to take action, the purpose or foreseeable
effect of which is to directly influence legislative action or
administrative action. The term includes letter- writing
campaigns, mailings, telephone banks, print and electronic
media advertising, billboards, publications and educational
campaigns on public issues. The term does not include
regularly published periodic newsletters primarily designed for
and distributed to members of a bona fide association or
charitable or fraternal nonprofit corporation.
65 Pa.C.S. §1303.
The term "administrative action" as defined above, includes an effort to influence an
agency's development or modification of a "guideline" or "statement of policy." Although
the terms "guideline" and "statement of policy" are not defined in the Act, per the Lobbying
Disclosure Regulations (51 Pa. Code §31.1 (definition, "administrative action "), they are as
defined in 1 Pa. Code §1.4, specifically:
Guideline - A document, other than an adjudication,
interpretation or regulation, which announces the policy an
agency intends to implement in future rulemakings,
adjudications or which will otherwise guide the agency in the
exercise of administrative discretion. The document may not
amend, repeal or suspend a published regulation or otherwise
effectively circumscribe administrative choice, but shall
establish a framework within which an agency exercises
administrative discretion. If authorized by statute, the
documents may be incorporated into or published as
regulations. The term includes, but is not limited to:
Dierkers, 00 -1004
Page 5
51 Pa. Code §31.1.
(1) Plans for agency operation and administration which
establish important policies to be utilized in the future exercise
of administrative discretion.
(2) General policies and plans for the award and
administration of discretionary grants of public monies.
(3) Announcements of principles and standards to be applied
in future adjudications.
Statement of policy - A document, except an adjudication or a
regulation, promulgated by an agency which sets forth
substantive or procedural personal or property rights,
privileges, immunities, duties, liabilities or obligations of the
public or a part thereof. The term includes a document
interpreting or implementing a statute enforced or administered
by an agency. The term includes, but is not limited to,
guidelines and interpretations.
1 Pa. Code 1.4; see also, related definition of "statement of policy" in 45 P.S. §1102.
The terms "principal" and "lobbyist" are defined in the statute as follows:
"Principal." Any individual, firm, association, corporation,
partnership, business trust or business entity:
(1) on whose behalf a lobbyist influences or attempts to
influence an administrative action or a legislative action; or
(2) that engages in lobbying on the principal's own behalf.
"Lobbyist." Any individual, firm, association, corporation,
partnership, business trust or business entity that engages in
lobbying on behalf of a principal for economic consideration.
The term includes an attorney who engages in lobbying.
Id. The Lobbying Disclosure Regulations similarly define the terms "principal" and
"lobbyist" and further provide that membership in an association alone is not sufficient to
make an association member a "principal" or "lobbyist." 51 Pa. Code §31.1.
Section 31.1 of the Lobbying Disclosure Regulations defines the term "association"
as follows:
Association - -An "association" as defined in the
Association Code in 15 Pa.C.S. §102 (relating to definitions).
The term includes a corporation, a partnership, a limited liability
company, a business trust or two or more persons associated in
a common enterprise or undertaking. The term does not
include a testamentary trust or an inter vivos trust as defined in
20 Pa.C.S. §711(3) (relating to mandatory exercise of
jurisdiction through orphans' court division in general).
Dierkers, 00 -1004
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The Act provides for certain exemptions from the registration and reporting
requirements, including the following:
§1306. Exemption from registration and reporting
The following individuals and activities shall be exempt from
registration under section 1304 (relating to registration) and
reporting under section 1305 (relating to reporting):
(3) Any of the following:
(i) An individual who does not receive compensation, other
than traveling expenses, for lobbying.
(ii) An individual whose compensation for lobbying, from all
principals represented, does not exceed $2500 in the
aggregate during any reporting period.
(iii) An individual who engages in lobbying on behalf of the
individual's employer and where lobbying activity represents
less than the equivalent of $2500 of the employee's time during
any reporting period, based on an hourly proration of the
employee's compensation.
(iv) A principal whose total expenses for lobbying purposes do
not exceed $2500 during any reporting period.
65 Pa.C.S. §1306(3).
The Act defines the term "agency" as follows:
"Agency." A State agency, board commission, authority or
department.
65 Pa.C.S. §1303.
The Lobbying Disclosure Regulations define the term "political subdivision" as it is
defined in the Pennsylvania Public Official and Employee Ethics Act (Ethics Act):
"Political subdivision." Any county, city, borough,
incorporated town, township, school district, vocational school,
county institution district, and any authority, entity or body
organized by the aforementioned.
65 Pa.C.S. §1102; 51 Pa. Code §31.1.
Finally, the federal regulation at 42 C.F.R. §431.12, which pertains to the functions
of the MAAC, provides as follows:
§431.12 Medical care advisory committee.
(a) Basis and purpose. This section, based on section
1902(a)(4) of the Act, prescribes State plan requirements for
establishment of a committee to advise the Medicaid agency about
Dierkers, 00 -1004
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health and medical care services.
(b) State plan requirement. A State plan must provide for a
medical care advisory committee meeting the requirements of this
section to advise the Medicaid agency director about health and
medical care services.
(c) Appointment of members. The agency director, or a higher
State authority, must appoint members to the advisory committee on a
rotating and continuous basis.
(d) Committee membership. The committee must include- -
(1) Board - certified physicians and other representatives of the
health professions who are familiar with the medical needs of low -
income population groups and with the resources available and
required for their care;
(2) Members of consumers' groups, including Medicaid
recipients, and consumer organizations such as labor unions,
cooperatives, consumer - sponsored prepaid group practice plans, and
others; and
(3) The director of the public welfare department or the public
health department, whichever does not head the Medicaid agency.
(e) Committee participation. The committee must have
opportunity for participation in policy development and program
administration, including furthering the participation of recipient
members in the agency program.
(f) Committee staff assistance and financial help. The agency
must provide the committee with- -
(1) Staff assistance from the agency and independent technical
assistance as needed to enable it to make effective
recommendations; and
(2) Financial arrangements, if necessary, to make possible the
participation of recipient members.
(g) Federal financial participation. FFP is available at
50 percent in expenditures for the committee's activities.
42 C.F.R. §431.12.
in applying the above provisions to the facts and issues before us, we first
determine that service on the MAAC is performed in a separate capacity from any other
which the member may hold. The MAAC performs specific advisory functions as provided
by federal regulations. Therefore, in performing those functions for the MAAC, the
members act on behalf of the MAAC rather than on behalf of any other entities they may
serve.
The obvious "next step" in our analysis is to determine whether the MAAC is a
principal under the Act, which necessarily requires a determination of the MAAC's nature.
We initially note that this is a matter of first impression for this Commission in interpreting
the Act. We are aware that there exist various forms of entities such as task forces, work
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groups, committees and the like, the nature of which may be difficult to discern, but which
clearly seek to influence legislative action or administrative action. We further expect that
the facts which are material to defining the nature of such entities vary greatly. Thus, our
decision in this case as to the MAAC will necessarily be limited to the unique facts
presently before us.
In the past, we have addressed the issue of whether certain entities such as the
Pennsylvania Developmental Disabilities Council (See, Keltz, Opinion 99- 1004), the City of
Philadelphia (See, Franklin - Suber, Opinion No. 99- 1012), the Port Authority of Allegheny
County (See, Veraldi, Opinion No. 99- 1013), and SEPTA (See, Bowers, Opinion No. 99-
1015), which were either State agencies or political subdivisions, were principals under the
Act. In those Opinions, this Commission held that since the definition of "principal" does
not include a political subdivision or State agency, the entities were not principals.
Similarly, in Ever, Opinion 99 -1016, we determined that the Philadelphia Gas Works, as an
integral part and instrumentality of the City of Philadelphia which owns it, is not a principal
under the Act.
The MAAC is clearly not a "political subdivision," but the legal relationship of the
MAAC to the Commonwealth is not so clear. There are close ties with DPW, but we have
not found any enabling legislation in Pennsylvania or any Gubernatorial Executive Order
actually establishing the MAAC. The MAAC is not an "agency," as that term is defined in
the Act. Nor does the MAAC appear to be an "agency," "Commonwealth agency,"
"government agency," or "independent agency" as those terms are defined in the
Administrative Agency Law, 2 Pa.C.S. §101.
The status of the MAAC does not appear to have been determined by any state or
federal court. However, in Burgess v. Affleck, 683 F.2d 596 (1st Cir. 1982), the First
Circuit Court of Appeals did note the role of a medical care advisory committee as
providing a voice to those outside of government:
We do not think that state officials alone, even the head of its
Consumers' Council, may satisfy the requirement that
members of "consumer organizations such as labor unions,
cooperatives," etc., be included on the committee. Regardless
of a state agency's good faith and statutory mandate to protect
consumers, it does not appear that the regulation
contemplates state officials as filling this role at least in the
absence of other representatives of consumer organizations.
While the enumerated examples - -such as labor unions - -are
not meant to be exhaustive, none are state agencies,
indicating at least inferentially that non - governmental groups
should be included. Moreover, the purpose of the MCAC
seems to be to provide independent input into the process of
state decision making. This cannot be accomplished without
representatives from outside of state government.
Burgess v. Affleck at 600 -601 (Emphasis added).
In the absence of any judicial, executive or legislative authority defining the legal
status of the MAAC to be governmental in nature, and upon consideration of all of the
factors set forth above, particularly the MAAC's role in providing a voice to those outside of
government, it appears that the MAAC would not be excluded from the definition of
"principal" as some form of governmental entity. Therefore, the MAAC may qualify as a
principal if it falls within one of the forms of entities enumerated in the statutory definition of
that term and if it engages in lobbying either itself or through lobbyists.
The MAAC certainly falls within the definition of "association," which is one of the
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Page 9
enumerated forms of entities within the definition of "principal." 51 Pa. Code §31.1; 65
Pa.C.S. §1303. The term "association" includes "two or more persons associated in a
common enterprise or undertaking." The MAAC Operating Guidelines provide that the
MAAC voting membership shall consist of no less than 15 members, and based upon the
functions of the MAAC, there is no question that a "common enterprise or undertaking"
exists.
Moreover, the MAAC advises DPW's Office of Medical Assistance Programs on
issues of policy development and program administration. See, 42 C.F.R. 431.12(e);
MAAC Operating Guidelines. An effort to influence "policy development" is clearly within
the definition of lobbying as an effort to influence "administrative action." Therefore, we
conclude that the MAAC is a "principal" because it is an association which engages in
lobbying through lobbyists or on its own behalf.
Having established that the MAAC is a principal, we hold that the MAAC would be
subject to the registration and reporting requirements of the Act if it would have total
expenses for lobbying exceeding $2,500 in any quarter. The MAAC would have 10 days to
register once the $2500 threshold would be exceeded.
We shall next consider the status of the MAAC members. Those members who are
not otherwise lobbyists would not be required to register or report under the Act because
they would qualify for exemption under Section 1306(3)(i) of the Act quoted above. Their
compensation for any lobbying activities would be limited to traveling expenses.
For those members of the MAAC who would engage in lobbying in their other
capacities, and whose compensation for lobbying would not be limited to traveling
expenses, the exemption of Section 1306(3)(i) would not apply. Such members would be
subject to the registration and reporting requirements of the Act assuming they would not
otherwise qualify for exemption.
Membership in the MAAC would not be sufficient to make a member a lobbyist for
the MAAC. If a particular member would not be involved in the MAAC's lobbying activities
or would not accept any economic consideration for MAAC activities, such a member
would not be a "lobbyist" for the MAAC.
MAAC members who would engage in lobbying in their other capacities as well as
for the MAAC, and who would accept travel expenses for lobbying for the MAAC, would
include such travel expenses in calculating their total compensation for lobbying.
However, they would not include any "in -kind dollar equivalent" for their time spent on
MAAC activities, since, as noted above, service on the MAAC is performed in a separate
capacity from any other which the member may hold, and the MAAC does not compensate
members for their time. MAAC members whose total compensation for lobbying would
exceed the "$2500 in any quarter" threshold would not qualify for exemption under 65
Pa.C.S. §1306(3)(ii).
MAAC members who would engage in lobbying for the MAAC and who would not
qualify for exemption from the registration and reporting requirements of the Act would be
required to file lobbyist registration statements as to the MAAC. They would also be
required to review and sign the Expense Reports filed by the MAAC, assuming the MAAC
would itself exceed the "$2500 in any quarter" lobbying expenditure threshold so as to be
required to register /report as a principal. See, 65 Pa.C.S. §1306(3)(iv). If the MAAC
would not be so required to register /report, or if these members would engage in lobbying
not contained in the reports filed by the MAAC, these members would have to file separate
lobbyist reports as to the MAAC. 65 Pa.C.S. §1305(b)(6). See, Roth, Opinion 99 -1006.
The propriety of the proposed conduct has only been addressed under the Act and
derivatively the Ethics Act to the extent applicable; the applicability of any other statute,
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Page 10
code, ordinance, regulation or other code of conduct has not been considered in that they
do not involve an interpretation of the Act.
IV. CONCLUSION: Pennsylvania's Medical Assistance Advisory Committee
(MAAC) is a "principal" because it is an association which engages in lobbying through
lobbyists or on its own behalf. The MAAC would be subject to the registration and
reporting requirements of the Lobbying Disclosure Act if it would have total expenses for
lobbying exceeding $2,500 in any quarter.
The service of members on the MAAC is performed in a separate capacity from any
other which the member may hold. Pursuant to Section 1306(3)(i) of the Act, MAAC
members who are not otherwise lobbyists would qualify for exemption from the registration
and reporting requirements of the Act, because their compensation for any lobbying
activities would be limited to traveling expenses. For those members of the MAAC who
would engage in lobbying in their other capacities, and whose compensation for lobbying
would not be limited to traveling expenses, the exemption of Section 1306(3)(i) would not
apply. Such members would be subject to the registration and reporting requirements of
the Act assuming they would not otherwise qualify for exemption.
Membership in the MAAC would not be sufficient to make a member a lobbyist for
the MAAC. If a particular member would not be involved in the MAAC's lobbying activities
or would not accept any economic consideration for MAAC activities, such a member
would not be a "lobbyist" for the MAAC. The MAAC travel expenses would be included in
calculating the total compensation for lobbying of MAAC members who would engage in
lobbying for the MAAC and others.
Pursuant to Section 1308 of the Act, a requestor who truthfully discloses all material
facts in a request for an advisory and who acts in good faith based upon a written opinion
of the Commission issued to the requestor shall not be held liable for a violation of the Act.
This Opinion is a public record and will be made available as such.
Finally, a party may request this Commission to reconsider its Opinion. The
reconsideration request must be received at this Commission within thirty days of the
mailing date of this Opinion. The party requesting reconsideration must include a detailed
explanation of the reasons as to why reconsideration should be granted in conformity with
51 Pa. Code §39.1.
By the Commission,
Daneen E. Reese
Chair