CEO 77-18 -- February 17, 1977
(Reversed on appeal)
HEALTH SYSTEM AGENCIES
APPLICABILITY OF CODE OF ETHICS TO MEMBERS OF GOVERNING BODY
For purposes of the annual filing of financial disclosure, the term "local officer" is defined to include appointed members of all boards, excluding members of advisory bodies. The term "advisory body" is defined to include those boards which are solely advisory in nature. The governing bodies of local health system agencies, established in Florida as nonprofit corporations pursuant to s. 1512 of Public Law 93-641, are charged with responsibility to assemble and analyze data concerning the area's health care delivery system; to establish, review, and amend for the area a health systems plan; to establish, review, and amend an annual implementation plan; to develop and publish specific plans and projects for achieving such plan; to implement both the above plans by providing grants and technical assistance to and contracting with individuals, public entities, and nonprofit private entities; and to review and approve or disapprove each proposed use within the area of federal funds appropriated under the law. Additionally, under s. 381.494, F. S. 1975, each health system agency is delegated a role in determining whether the state will approve an application for a new or converted, expanded, or otherwise significantly modified health facility. Such functions are not deemed to be solely advisory, as the power of each health system agency broadly influences the lives of persons within its jurisdiction. The legal structure is deemed to be of no material consequence, and members of the governing boards of health system agencies constitute local officers subject to the annual filing of financial disclosure. They are further deemed to constitute public officers for purposes of the standards of conduct and voting conflict of interest provisions of the Code of Ethics.
1. Are members of the governing board of a health systems agency "local officers" subject to the annual filing of financial disclosure?
2. Are members of the governing board of a health systems agency "public officers" for purposes of the standards of conduct and voting conflict of interest provisions of the Code of Ethics?
Question 1 is answered in the affirmative.
It is our understanding, based on your letter of inquiry and subsequent information provided our office by members of your staff, that regional health systems agencies (HSA's) have been established in Florida as nonprofit corporations pursuant to s. 1512 of Public Law 93-641, the National Health Planning and Resources Development Act of 1974 (the act). Each HSA, once it has been unconditionally designated as a HSA by the Secretary of the U. S. Department of Health, Education and Welfare, has as its primary responsibility the provision of effective health planning for its area and the promotion of the development of health services, manpower and facilities which meet identified needs, reduce documented inefficiencies and implement the health plans of the agency.
The functions of each HSA are specified in s. 1513 of the act. These functions include: assembling and analyzing data concerning the area's health care delivery system; establishing, reviewing, and amending for the area a health systems plan (HSP) which is a detailed statement of goals for assuring accessible, quality health services for all residents of the area at reasonable cost; establishing, reviewing, and amending an annual implementation plan (AIP) which describes objectives for achieving the goals of the HSP and sets priorities for the objectives; developing and publishing specific plans and projects for achieving the objectives of the AIP; implementing the HSP and AIP, with assistance from individuals and public and private entities in the area, by providing grants and technical assistance to and contracting with such individuals, public entities, and nonprofit private entities as the HSA determines is necessary to achieve the goals of the HSP (Grants and contracts are made from federal funds at present); and reviewing and approving or disapproving each proposed use within the area of federal funds appropriated under the act, the Community Mental Health Centers Act, or the Comprehensive Alcohol Abuse Act of 1970 or made available by the state under any of the above acts. If such use of federal funds is disapproved by the HSA, the Secretary of HEW still may make such funds available upon submitting to the HSA and to the Department of Health and Rehabilitative Services (DHRS) a detailed statement of the reasons for the decision.
In addition, under s. 381.494, F. S. 1975, each HSA has been delegated a role in determining whether the state will approve an application for a new or converted, expanded, or otherwise significantly modified health facility. When such an application is made for a "certificate of need," the HSA investigates and holds a public hearing in order to determine the need within the area for the proposed facility. The HSA then recommends the approval or disapproval of the application to the Department of Health and Rehabilitative Services (DHRS). DHRS reviews the application, the recommendation of the HSA, and the relationship between the application and the state health plan in order to make the final determination of whether to issue a certificate of need. Any facility which fails to receive a certificate of need may not be licensed to operate by DHRS.
The composition of the governing body of each HSA is specified in s. 1512(b)(3)(C) of the act. A majority of the membership must be residents of the area served who are consumers of health care and are broadly representative of the populations and geographic areas served. The remainder of the members also must be residents, but must be providers of health care, i.e., they must represent physicians, health care institutions, health professional schools, health care insurers, and the allied health professions. In addition, the membership must include public elected officials, other representatives of area governmental authorities, and representatives of public and private agencies concerned with health, and must have a pro rata representation of persons who reside in the nonmetropolitan areas within the area served by the HSA.
The responsibilities of the governing body are specified by s. 1512(b)(3)(B) of the act. Under that section, the governing body of each HSA is responsible for establishing its HSP and AIP, for the approval of grants and contracts made by the HSA, and generally for the internal affairs of the HSA and the approval of all actions taken by the HSA.
The Code of Ethics for Public Officers and Employees requires that each "local officer" annually file a statement of financial interests. Section 112.3145(2)(b), F. S. 1975. The term "local officer" is defined to include:
Any appointed member of a board, commission, authority, community college district board of trustees, or council of any political subdivision of the state, excluding any member of an advisory body. A governmental body with land-planning, zoning, or natural resources responsibilities shall not be considered an advisory body. [Section 112.3145(1)(a)2., F. S. 1975.]
"Political subdivision" is defined in s. 1.01(9), F. S. 1975, to include:
. . . counties, cities, towns, villages, special tax school districts, special road and bridge districts, bridge districts and all other districts in this state.
Pursuant to s. 1511(b) of the act, the Governor has designated boundaries of the nine health service areas for the state within which each HSA functions. In our view, the Governor, by his official action, has created nine districts which constitute political subdivisions for purposes of the Code of Ethics. Therefore, unless the HSA's are determined to be "advisory bodies," the members of the governing board of each HSA constitute "local officers."
The term "advisory body" is defined in s. 112.312(1), F. S. (1976 Supp.), to mean:
. . . any board, commission, committee, council, or authority, however selected, whose total budget, appropriations, or authorized expenditures constitute less than 1 percent of the budget of each agency it serves or $100,000, whichever is less, and whose powers, jurisdiction, and authority are solely advisory and do not include the final determination or adjudication of any personal or property rights, duties, or obligations, other than those relating to its internal operations.
As each HSA has the authority to establish plans for the future development of health facilities in its area and to make grants and to enter into contracts in furtherance of those plans, we find that the powers, jurisdiction, and authority of each HSA are not solely advisory. Therefore an HSA is not an advisory body for purposes of financial disclosure.
The result of this analysis is consistent with a previous opinion of this commission, CEO 75-192, in which we found that the members of the Brevard Health Planning Council, Inc., were subject to financial disclosure requirements. That council performed health planning functions under state and federal law analogous to the functions of the subject HSA's under present state and federal law.
The health planning functions of each HSA and the legal authority to implement its plans give each HSA broad power to influence the lives of persons within its jurisdiction. Because of this authority, we feel that the members of the governing body of each HSA, the persons who are responsible for its decision, undoubtedly fall within the class of public officials for which financial disclosure was intended by the Legislature. Moreover, had each HSA been structured as a public regional planning body or a single unit of local government (as the act contemplates), instead of as a nonprofit corporation, members of its governing body would clearly constitute "local officers." As a result, we refuse to believe that the legal structure of an HSA is of material consequence here.
Accordingly, we find that members of the governing board of a health systems agency are "local officers" and therefore are subject to the annual filing of financial disclosure.
Question 2 is answered in the affirmative.
Section 112.313(1), F. S. 1975, defines the term "public officer" as follows:
As used in this section, unless the context otherwise requires, the term "public officer" shall include any person elected or appointed to hold office in any agency, including any person serving on an advisory body.
The term "agency" is defined by s. 112.312(2), F. S. (1976 Supp.), to include any political subdivision of this state. Therefore the rationale to question 1, above, applies.
Accordingly, members of the governing board of a health systems agency constitute "public officers" subject to the standards of conduct provisions contained in s. 112.313 and to the voting conflict of interest provision, s. 112.3143, F. S.