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HomeMy WebLinkAbout99-1025 CapozziOPINION OF THE COMMISSION Louis J. Capozzi, Jr., Esquire Capozzi and Associates, P.C. 3109 North Front Street Harrisburg, PA 17110 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: 11/23/99 DATE MAILED: 12/7/99 99 -1025 Re: Lobbying, Lobbyist, Law Firm, Attorney, Client, Enforcement, Reimbursement, Applications, Appeals, State Agency, Administrative Action, Agency Regulations, Guidelines, Statements of Policy, Nursing Facility, Medical Assistance, Guardian. Dear Mr. Capozzi: This Opinion is issued in response to your advisory request received on September 20, 1999. I. ISSUE: Whether a law firm engages in lobbying under the Lobbying Disclosure Act when it represents clients in matters involving enforcement and reimbursement administered by state agencies with regard to: (1) various applications to such state agencies which relate to the issuance, amendment, waiver, or deletion of regulations, or which relate to requests for exceptions, approvals, or waivers; (2) appeals and claims before agency boards and tribunals that include disputes with agency interpretations or applications of regulations or statements of policy, or with the very legality of such regulations or statements of policy; (3) letters to agency officials seeking information and assistance and including background as to why the assistance is required and why the agency should grant the request; and (4) discussions with agency staff concerning agency regulations or policies in the context of seeking to settle appeals or claims authorized by various statutes or regulations. II. FACTUAL BASIS FOR DETERMINATION: On behalf of your law firm, Capozzi and Associates, P.C., you seek an advisory from this Commission under the Lobbying Disclosure Act (Act). Capozzi, 99 -1025 December 7, 1999 Page 2 Your firm represents health care industry clients, primarily nursing facilities, in enforcement and reimbursement matters administered by the Pennsylvania Departments of Aging, Health, and Public Welfare. These matters involve the following: (1) applications to the above state agencies pursuant to 1 Pa. Code, Part II, including applications pursuant to 1 Pa. Code §35.18 (relating to issuance, amendment, waiver, or deletion of regulations); (2) applications pursuant to 28 Pa. Code §51.33 (relating to requests for exceptions); (3) applications pursuant to 55 Pa. Code §§1187.21a, 1187.113a, and 1187.113b; (4) appeals before agency tribunals and claims before the Board of Claims that include disputes with agency interpretations or applications of regulations or statements of policy or with the legality of such regulations or statements of policy (e.g. disputes authorized by 37 Pa. Code § §197.61- 197.72; 55 Pa. Code §1101.84(c)); and (5) letters to agency officials seeking information and assistance and including background information as to why the assistance is required and why the agency should grant the request. You ask this Commission to confirm that the Act's definitions of "lobbyist," "lobbying," and "administrative action" do not apply to any of the matters or proceedings described above. You further ask this Commission to confirm that the aforesaid definitions do not apply to discussions with agency staff concerning agency regulations or policies in the context of seeking to settle appeals or claims authorized by the Judicial Code (42 Pa. C. S. § §761 and 763), by 55 Pa. Code § §1101.84 and 1187.141, or by the Board of Claims Act (72 P.S. §4651 -1 et seq.). You have submitted a four -page letter dated July 29, 1999 from you to the Honorable Sherri Z. Heller, Deputy Secretary for Income Maintenance, Department of Public Welfare ( "DPW "), which letter is incorporated herein by reference. You offer this letter to exemplify your firm's activities under category 5 above. The letter may be fairly summarized as follows. The letter pertains to the rights of nursing facility residents who are eligible for Medical Assistance benefits, but who require the appointment of a guardian in order to complete the application process and to provide authorized consent for care pursuant to the Nursing Home Reform Law, 42 U.S.C. §1396r. In the letter, you note that Pennsylvania State Government has already put into place the information, policies and procedures for incapacitated older Pennsylvanians to access Medical Assistance benefits and, thereafter, to manage their continuing care. However, you contend that guardianship support services are not uniformly available to indigent nursing facility residents across Pennsylvania. You state that DPW is already expressly authorized by law to seek the appointments of guardians for these individuals, and DPW has already promulgated regulations at 55 Pa. Code Chapter 163, which regulations permit the State Office and the County Assistance Offices to seek and to pay for the appointment of such guardians to assist with completion of the application process. However, you have experienced difficulty in obtaining information from County Assistance Offices on the procedures which a nursing facility should follow to obtain assistance for an indigent resident under the aforesaid regulations. You ask the Deputy Secretary for assistance in making available to nursing facility administrators procedures for them to access the guardianship support Capozzi, 99 -1025 December 7, 1999 Page 3 services available to indigent incompetent nursing facility residents under Chapter 163. You offer your assistance in developing and presenting education and training sessions on the use of these procedures. Your incorporated letter also asks the Deputy Secretary for assistance in confirming whether the costs incurred for a guardian would be treated as allowable medical expenses that could be offset against the "patient pay amount" under 55 Pa. Code §181.452 (d)(5)(iv). You cite a recent Massachusetts decision which held that such costs would be so treated. While stating your view that the same result would apply in Pennsylvania, you contend that it would be better to cover such expenses under Chapter 163, both for ease of administration and so that the Government's duty to provide for access would not be shifted to others. Having completed the recitation of the facts submitted in your advisory request letter, we note that by letter dated November 2, 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. Thereafter, you submitted a memorandum of law in support of your request, which memorandum was received by this Commission on November 9, 1999. In the memorandum you advocate for a determination by this Commission that the Act does not apply to an attorney's representation of clients in litigation and other adjudicatory proceedings before administrative agencies, or before other tribunals where an administrative agency is a party, even if the objective of the matter is the modification of a statement of policy. You ask this Commission to adopt an Opinion which will draw a "bright line" distinction between "lobbying" which is subject to the Act and the practice of law" which is beyond the Act's reach. 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: Capozzi, 99 -1025 December 7, 1999 Page 4 "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; (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 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 Capozzi, 99 -1025 December 7, 1999 Page 5 Id. (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. 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: (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. Having reviewed the applicable terms, we make the following observations, which set the parameters within which we shall address your inquiry. First, in considering whether various actions by a lawyer /law firm would constitute "lobbying," we are guided by the fundamental principle that lobbying and the practice of law are separate, distinct and mutually exclusive activities. Artz, Opinion 99 -1007; Flaherty, Opinion 99 -1010. Capozzi, 99 -1025 December 7, 1999 Page 6 Second, it is the position of this Commission that the practice of law is properly limited to those services which may not lawfully be performed by anyone but an attorney, that is, those services which if performed by a non - lawyer would constitute the unauthorized practice of law. Third, in reviewing advisory requests under the Lobbying Disclosure Act, this Commission must observe the boundaries of its own jurisdiction. Where the activities of a law firm clearly fall within the practice of law, this Commission may so observe. However, where it is not clear whether a law firm's activities would constitute the practice of law, this Commission will not decide that particular aspect of the issue because this Commission lacks the jurisdiction to do so. Finally, where an attorney's /law firm's representation of a client would generally constitute the practice of law and not lobbying, this Commission must ensure that in reaching the legally correct and just result, it does not open the door to manipulation by those seeking to avoid the requirements of the Lobbying Disclosure Act. Therefore, as to those activities which would generally constitute the practice of law, the use of a legal proceeding as a vehicle to influence legislative action or administrative action, where such would not legitimately be within the scope of legal representation of the specific client involved in that specific legal proceeding, would be viewed as lobbying. Within the parameters set forth above, we shall now address the questions which you have posed. Your first question seeks confirmation from this Commission that the definitions of "lobbyist," "lobbying," and "administrative action" do not apply to any of the matters or proceedings described in the five enumerated categories of activities of your firm as set forth in the facts above. We shall consider the five categories seriatim. The first category involves applications submitted to the Departments of Aging, Health, and Public Welfare pursuant to 1 Pa. Code, Part II, including applications pursuant to 1 Pa. Code §35.18. 1 Pa. Code, Part II consists of the General Rules of Administrative Practice and Procedure before agencies of the Commonwealth. These Rules govern the practice and procedure before agencies of the Commonwealth except where the applicable statute or agency regulations set forth inconsistent rules /regulations on the same subject. 1 Pa. Code §31.1. When 1 Pa. Code § §31.21 -31.23 are applicable, they restrict representation before the agency as to adversary proceedings and hearings. In an adversary proceeding, the party must either appear pro se or be represented by an attorney; representation in a hearing before an agency head or presiding officer is similarly limited, unless the agency permits otherwise in a specific case. Accordingly, we hold that for adversary proceedings and hearings where representation is governed by 1 Pa. Code § §31.21- 31.23, an attorney's /law firm's representation of a client would not constitute lobbying. Turning to 1 Pa. Code §35.18, this particular Section establishes the formal requirements relating to petitions to an agency for the issuance, amendment, waiver or deletion of regulations. This Section provides as follows: §35.18. Petitions for issuance, amendment, waiver or deletion of regulations. A petition to an agency for the issuance, amendment, waiver or repeal of a regulation shall set forth clearly and concisely the interest of the petitioner in the subject matter, the specific regulation, amendment, waiver or Capozzi, 99 -1025 December 7, 1999 Page 7 repeal requested, and shall cite by appropriate reference the statutory provision or other authority therefor. The petition shall set forth the purpose of, and the facts claimed to constitute the grounds requiring, the regulation, amendment, waiver or repeal. Petitions for the issuance or amendment of a regulation shall incorporate the proposed regulation or amendment. 1 Pa. Code §35.18. We shall first consider petitions /applications submitted to a state agency pursuant to 1 Pa. Code §35.18, where the request is for the issuance, amendment, or repeal of a regulation in the context of a specific agency matter pertaining to a specific client. We recognize that there conceivably could be situations where a law firm, in the course of its legal representation of a party to a specific proceeding, would apply to a state agency pursuant to 1 Pa. Code §35.18 for the issuance, amendment, or repeal of a regulation, as legitimately within the scope of its legal representation of the specific client involved in that specific matter. For example, a law firm might petition for the repeal of an unconstitutional regulation being enforced against the client. In that particular example, the law firm would not be lobbying. Similarly, a law firm might petition for the issuance or amendment of a regulation to remedy an unconstitutional application of existing regulations as to the particular client involved in a specific enforcement proceeding. Again, in such a scenario, the law firm would not be lobbying. On the other hand, as noted above, the use of an enforcement matter merely as a vehicle to submit a petition /application pursuant to 1 Pa. Code §35.18 for regulatory change where such would not legitimately be within the scope of the legal representation of the specific client involved in that specific matter would be viewed as lobbying. We therefore hold that petitions /applications submitted by a law firm pursuant to 1 Pa. Code §35.18 for the issuance, amendment, or repeal of a regulation, when done in the context of another, specific matter as to a specific client, would not constitute lobbying if the submission of such a petition /application would legitimately be within the scope of legal representation of that specific client as to that other specific matter. The submission of a petition /application pursuant to 1 Pa. Code §35.18 for regulatory change that would not legitimately be within the scope of legal representation of that specific client as to that other specific matter would be viewed as lobbying. As for requesting a waiver of an agency regulation on behalf of a client, we note that in Flaherty, Opinion 99 -1010, we held that a law firm which advocates on behalf of its client for a favorable interpretation of an agency policy in a specific matter involving the client is not lobbying. That principle would apply equally to a situation where your firm would request a waiver of an agency regulation on behalf of a specific client in the context of a specific matter. We hold that a petition /application submitted by a law firm pursuant to 1 Pa. Code §35.18 for a waiver of a regulation as to a specific client in the context of a specific matter involving that client would not constitute lobbying. We shall next consider petitions submitted to an agency pursuant to 1 Pa. Code §35.18 which request the issuance, amendment, or deletion of regulations outside the context of some other specific administrative agency proceeding involving a specific client. In Flaherty, supra, we held that a law firm which requests a change in departmental policy in a general way, without reference to a specific site or specific client, but with the recognition that the change in policy could benefit a client, would be engaged in lobbying. Similarly, we now determine that a petition submitted to an agency pursuant to 1 Pa. Code §35.18 requesting the issuance, amendment, or deletion of regulations, outside the context of some other, specific administrative agency proceeding involving a specific client, would generally constitute lobbying. Capozzi, 99 -1025 December 7, 1999 Page 8 We shall now address the second category of your firm's activities, which involves applications for exceptions submitted to the Department of Health pursuant to 28 Pa. Code §51.33. This Section and the surrounding Sections (51.31, 51.32, and 51.34) provide a mechanism for health care facilities to request exceptions from existing regulations that would otherwise apply to them. The mere submission of a request on behalf of a client for an exception from the existing regulations would not, per se, constitute an effort to influence "administrative action," because such would not necessarily include any effort to influence DPW's "proposal, consideration, promulgation or rescission of a regulation," "development or modification of a guideline or a statement of policy," or "approval or rejection of a regulation." See, 65 Pa.C.S. §1303. We therefore hold that the mere submission of applications /requests for exceptions pursuant to 28 Pa. Code §51.33 would generally not constitute "lobbying" under the Lobbying Disclosure Act. To the extent your law firm might engage in advocating for regulatory change while handling an application /request for exceptions pursuant to 28 Pa. Code §51.33, such advocacy would not constitute lobbying if it would legitimately be within the scope of legal representation of the specific client involved in that specific matter. The third category of submitted activities by your law firm involves applications pursuant to 55 Pa. Code §§1187.21a, 1187.113a, and 1187.113b. 55 Pa. Code §1187.21a sets forth the policies and procedures governing the enrollment of nursing facilities as new providers under the Medical Assistance (MA) Program, and the expansion of the number of licensed and MA- certified beds for existing providers. The process for enrollment /expansion involves the submission of "exception requests" to DPW. 55 Pa. Code §1187.113a applies to participating providers of nursing facility services that intend to seek capital component payments for "replacement beds" constructed, licensed or certified after November 29, 1997. This Section sets forth DPW requirements, policies, and guidelines pertaining to requests submitted by nursing facility providers under the MA Program for approval of such replacement beds. 55 Pa. Code §1187.113b authorizes DPW to grant waivers of §1187.113a to permit capital reimbursement as it in its sole discretion determines necessary and appropriate. This Section governs applications for capital cost reimbursement waivers of §1187.113a. This Section also applies to participating providers that were granted moratorium waivers under Chapter 1181 (relating to nursing facility care). Having reviewed 55 Pa. Code §§1187.21a, 1187.113a, and 1187.113b, it is clear that the mere submission of applications /requests pursuant to the aforesaid existing DPW regulations would not, per se, constitute an effort to influence "administrative action," because such would not necessarily include any effort to influence DPW's "proposal, consideration, promulgation or rescission of a regulation," "development or modification of a guideline or a statement of policy," or "approval or rejection of a regulation." See, 65 Pa.C.S. §1303. We therefore hold that the mere submission of applications /requests pursuant to 55 Pa. Code §§1187.21a, 1187.113a, or 1187.113b would generally not constitute "lobbying" under the Lobbying Disclosure Act. To the extent your law firm might engage in advocating for regulatory change while representing a client as to a specific application or request under 55 Pa. Code §1187.21a, §1187.113a, or 1187.113b, such advocacy would not constitute lobbying if it would legitimately be within the scope of legal representation of the specific client involved in that specific matter. The fourth category of your firm's activities involves appeals before agency tribunals Capozzi, 99 -1025 December 7, 1999 Page 9 and claims before the Board of Claims that include disputes with agency interpretations or applications of regulations or statements of policy, or with the legality of such regulations or statements of policy, such as disputes authorized by 37 Pa. Code § §197.61- 197.72 and 55 Pa. Code §1101.84(c). 37 Pa. Code § §197.61- 197.72 govern petitions submitted to the State Health Facility Hearing Board for posing objections to regulations, criteria and standards which have already been officially adopted by the Department of Health or by a health systems agency. The submission of such a petition would appear to constitute the sort of effort that would fit within the definition of "administrative action" as set forth in the Act, 65 Pa.C.S. §1303. We note that appearances before the State Health Facility Hearing Board are governed by 37 Pa. Code §197.9, which supersedes 1 Pa. Code §31.21 above. It is not clear from the face of that provision whether a non - attorney may represent another person before the State Health Facility Hearing Board. Accordingly, we hold that the representation of a client as to a petition submitted to the State Health Facility Hearing Board pursuant to 37 Pa. Code § §197.61- 197.72 would constitute lobbying unless such representation would be limited by law to attorneys, in which case it would not constitute lobbying. 55 Pa. Code §1101.84(c) pertains to appeals of adverse actions of DPW to the Office of Hearings and Appeals. Handling such appeals would generally not constitute lobbying. To the extent your law firm might, while representing a client as to such an appeal, engage in advocating for changes to regulations, statements of policy, or guidelines, such advocacy would not constitute lobbying if it would legitimately be within the scope of legal representation of the specific client involved in that specific matter. The Board of Claims is an independent administrative board which arbitrates claims against the Commonwealth arising from contracts entered into by the Commonwealth and which adjusts and settles certain other claims against the Commonwealth. 72 P.S. §4651- 1. Given the nature of the Board's jurisdiction, your firm's activities within the context of handling claims before the Board of Claims would not constitute lobbying. The fifth category of your firm's activities is described as involving letters from your firm to agency officials seeking information and assistance and including background information as to why the assistance is required and why the agency should grant the request. This category is so broadly described that on its face, it could involve some activities which would constitute lobbying and some which would not. We shall now review your July 29, 1999 letter to the Deputy Secretary for Income Maintenance at DPW, which letter you submitted to exemplify this fifth category of activities. We begin by noting the date of the letter, July 29, 1999, which of course pre -dates the effective date of the Lobbying Disclosure Act. We point this out to emphasize the fact that our review of this letter should not be interpreted as ruling upon whether it specifically constituted lobbying. We clearly do not have the jurisdiction to review such conduct which occurred prior to the effective date of the Lobbying Disclosure Act, nor is past conduct ruled upon in the context of an advisory request. Rather, we are reviewing the substance of the letter as an example of conduct which may occur in the future, now that the Lobbying Disclosure Act has taken effect. Our second, general observation of the July 29, 1999 letter is that it is not clear whether the letter was issued in the context of any specific enforcement or reimbursement matter then pending. The letter references a particular "matter number," which appears to Capozzi, 99 -1025 December 7, 1999 Page 10 be your own office's internal file number -- indeed, a similar designation appears on your request letter to this Commission. The text of the letter does not appear to relate to any particular client or matter before DPW. As set forth more fully in the facts above, your letter to the Deputy Secretary makes two requests: (1) a request for assistance in making available to nursing facility administrators procedures for them to access the guardianship support services available to indigent incompetent nursing facility residents under 55 Pa. Code Chapter 163, accompanied by an offer of your assistance in developing and presenting education and training sessions on the use of these procedures; and (2) a request for assistance in confirming whether the costs incurred for a guardian would be treated as allowable medical expenses that could be offset against the "patient pay amount" under 55 Pa. Code §181.452(d)(5)(iv), accompanied by your proffered view on the matter and your advocacy that it would be better to cover such expenses under Chapter 163. In examining the first request, the ambiguity of the writing makes it capable of two entirely different meanings, specifically: (1) that the procedures in question are already legally available to nursing facility administrators and need only to be made more practically available to them, such as through education as to their existence and proper use; or (2) that you are seeking to expand the existing process so that it would become legally available to nursing facility administrators. Since the burden is upon you as the one seeking an advisory from this Commission to clearly state the material facts pertinent to your request, we shall not attempt to determine which interpretation is correct. Rather, we shall simply advise you that if the latter interpretation is correct, this sort of effort to expand the legal accessibility to include nursing facility administrators could constitute lobbying, with you /your law firm being the lobbyists. On the other hand, if the former interpretation is correct, such that the existing procedures are already legally accessible to nursing facility administrators and your efforts are simply directed to education, this sort of request would not constitute lobbying. As for the second request in your letter to the Deputy Secretary, we determine that a mere request for assistance in confirming whether the costs incurred for a guardian would be treated as allowable medical expenses that could be offset against the "patient pay amount" under 55 Pa. Code §181.452(d)(5)(iv) in and of itself would not constitute lobbying, because it would only be seeking information or advice. However, the submission of your viewpoint on the matter together with advocacy as to a "better" way to cover such expenses could very well constitute lobbying, depending upon the factual circumstances. We now address your final questions. You ask this Commission to confirm that the definitions of "lobbyist," "lobbying," and "administrative action" do not apply to discussions with agency staff concerning agency regulations or policies in the context of seeking to settle appeals or claims authorized by the Judicial Code (42 Pa.C.S. § §761 or 763), by 55 Pa. Code § §1101.84 or 1187.141, or by the Board of Claims Act (72 P.S. §4651 -1 et seq.). 42 Pa.C.S. § §761 and 763 involve, respectively, matters within the original jurisdiction of Commonwealth Court and appeals to Commonwealth Court from final orders of government agencies. Your firm's activities in handling or settling such lawsuits would not constitute lobbying. 55 Pa. Code § §1101.84 pertains to appeals filed by providers with DPW's Office of Hearings and Appeals from various DPW actions. Handling or seeking to settle such appeals would generally not constitute lobbying. 55 Pa. Code § §1187.141 pertains to appeals by nursing facilities filed with DPW's Office of Hearings and Appeals from certain specified types of DPW decisions. Handling Capozzi, 99 -1025 December 7, 1999 Page 11 or seeking to settle such appeals would generally not constitute lobbying. Finally, as noted above, your firm's representation of clients in matters before the Board of Claims would not constitute lobbying. To the extent your law firm might, while seeking to settle appeals or claims authorized by the Judicial Code (42 Pa.C.S. § §761 and 763), by 55 Pa. Code § §1101.84 and 1187.141, or by the Board of Claims Act (72 P.S. §4651 -1 et seq.), engage in advocating for changes to regulations, statements of policy, or guidelines, such advocacy would not constitute lobbying if it would legitimately be within the scope of legal representation of the specific client involved in that specific matter. If lobbying would occur as to any of the above activities, your firm would have to register as a lobbyist. Although there are certain exemptions for individuals as to lobbying, no such exemption is accorded to an entity or a firm regarding the $2500 quarterly threshold. Likewise, any individual lobbyist in the firm who would not qualify for one of the exemptions set forth in Section 1306 would have to register. 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, 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: A lawyer /law firm which engages in both lobbying and the practice of law must observe the requirements of the Lobbying Disclosure Act only as to those activities which constitute "lobbying" under the Act. Lobbying and the practice of law are separate, distinct and mutually exclusive activities. Those services which may not lawfully be performed by anyone but an attorney would not constitute lobbying. However, the use of a legal proceeding as a vehicle to influence legislative action or administrative action where such would not legitimately be within the scope of legal representation of the specific client involved in that specific legal proceeding would be viewed as lobbying. For adversary proceedings and hearings where representation is governed by 1 Pa. Code § §31.21- 31.23, an attorney's /law firm's representation of a client would not constitute lobbying. Petitions or applications submitted by a law firm pursuant to 1 Pa. Code §35.18 for the issuance, amendment, or repeal of a regulation, when done in the context of another, specific matter as to a specific client, would not constitute lobbying if the submission of such a petition or application would legitimately be within the scope of legal representation of that specific client as to that other specific matter. The submission of a petition or application pursuant to 1 Pa. Code §35.18 for regulatory change that would not legitimately be within the scope of legal representation of that specific client as to that other specific matter would be viewed as lobbying. A petition or application pursuant to 1 Pa. Code §35.18 for a waiver of a regulation as to a specific client in the context of a specific matter involving that client would not constitute lobbying. A petition submitted to an agency pursuant to 1 Pa. Code §35.18 requesting the issuance, amendment, or deletion of regulations, outside the context of some other, specific administrative agency proceeding involving a specific client, would generally constitute lobbying. The mere submission of an application, petition, or request to the Department of Health or the Department of Public Welfare pursuant to 28 Pa. Code §51.33 or 55 Pa. Code §§1187.21a, 1187.113a, or 1187.113b would generally not constitute an effort to influence "administrative action," and therefore would generally not constitute "lobbying" under the Act. To the extent a lawyer or law firm handling such a matter might engage in Capozzi, 99 -1025 December 7, 1999 Page 12 advocating for regulatory change, such advocacy would not constitute lobbying if it would legitimately be within the scope of legal representation of the specific client involved in that specific matter. The representation of a client as to a petition submitted to the State Health Facility Hearing Board pursuant to 37 Pa. Code § §197.61- 197.72 to pose objections to regulations, criteria or standards officially adopted by the Department of Health or by a health systems agency would constitute lobbying unless such representation would be limited by law to attorneys, in which case it would not constitute lobbying. Handling or seeking to settle appeals or claims authorized by the Judicial Code, 42 Pa.C.S. § §761 or 763, or by the Board of Claims Act would not constitute lobbying. Handling or seeking to settle appeals or claims authorized by 55 Pa. Code § §1101.84 or 1187.141 would generally not constitute lobbying. To the extent a lawyer or law firm might, while handling or seeking to settle such appeals or claims, engage in advocating for changes to regulations, statements of policy, or guidelines, such advocacy would not constitute lobbying if it would legitimately be within the scope of legal representation of the specific client involved in that specific matter. Depending upon the facts, the submission of letters from a lawyer /law firm to agency officials seeking information and assistance and including background information as to why the assistance is required and why the agency should grant the request, could constitute lobbying. If lobbying would occur as to any of the above activities, the law firm would have to register as a lobbyist. Any individual lobbyist in the firm who would not qualify for one of the exemptions set forth in Section 1306 of the Act would also have to register. 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, Austin M. Lee Vice Chair Chair Daneen E. Reese did not participate in this matter.