B-206466 L/M, SEP 13, 1982

B-206466 L/M, SEP 13, 1982

PRECIS-UNAVAILABLE

VIN WEBER, HOUSE OF REPRESENTATIVES:

THIS IS IN RESPONSE TO YOUR REQUEST OF FEBRUARY 4, 1982, THAT WE INVESTIGATE THE USE OF FUNDS APPROPRIATED UNDER TITLE IIIB OF THE OLDER AMERICANS ACT FOR LOBBYING ACTIVITIES. WITH YOUR REQUEST, YOU ENCLOSED A COPY OF A MEMORANDUM DATED DECEMBER 16, 1981, FROM ZANA POSTEL OF THE SOUTHWEST AREA MINNESOTA OMBUDSMAN PROGRAM TO "NURSING HOME ADMINISTRATORS AND RESIDENTS COUNCIL PRESIDENTS". THE PROGRAM RECEIVES GRANT FUNDS UNDER TITLE III OF THE OLDER AMERICANS ACT, 42 U.S.C. 3030D, AS AMENDED. THE MEMORANDUM OUTLINED FIVE HEALTH-CARE RELATED ELEMENTS OF THE BUDGET WHICH GOVERNOR QUIE HAD PROPOSED TO THE MINNESOTA STATE LEGISLATURE, AND CALLED UPON NURSING HOME RESIDENTS TO CONTACT EITHER THE GOVERNOR OR THEIR LEGISLATORS TO EXPRESS THEIR OPINIONS OF THE BUDGETARY PROPOSALS.

WE AGREE WITH STATE SENATOR DENNIS FREDERICKSON'S CHARACTERIZATION OF THE MEMORANDUM, EXPRESSED IN HIS LETTER TO YOU OF JANUARY 28, 1982, AS "GRASS ROOTS" LOBBYING. IT AMOUNTED TO AN ATTEMPT TO INFLUENCE PENDING LEGISLATION BY URGING NURSING HOME ADMINISTRATORS AND RESIDENTS TO EXPRESS THEIR VIEWS ON THE GOVERNOR'S FIVE PROPOSALS, SINCE IT COULD REASONABLY BE ANTICIPATED THAT MOST OF THE ADDRESSEES WOULD OPPOSE THE PROPOSED MEASURES. HOWEVER, WE DID NOT FIND ANY FEDERAL STATUTORY PROVISION THAT RESTRICTS THE USE OF TITLE III FUNDS FOR LOBBYING STATE REPRESENTATIVES. THE CRIMINAL STATUTE WHICH MR. FREDERICKSON CITED IN HIS LETTER TO YOUR OFFICE, 18 U.S.C. SEC. 1913, PROHIBITS THE USE OF APPROPRIATED MONEYS TO LOBBY MEMBERS OF THE UNITED STATES CONGRESS. IT DOES NOT, AS MR. FREDERICKSON OBSERVES, COVER ATTEMPTS TO INFLUENCE LEGISLATION BEFORE STATE GOVERNMENT OFFICIALS.

ADDITIONALLY, THE STATUTE PROVIDING FUNDING FOR THE OLDER AMERICANS ACT OF 1965 ON DECEMBER 16, 1981, THE DATE ON WHICH THE OMBUDSMAN'S MEMORANDUM WAS PREPARED, DID NOT PROHIBIT THE USE OF APPROPRIATED FUNDS TO LOBBY STATE LEGISLATORS. THE CONTINUING RESOLUTION, PUB.L. 97-92, DECEMBER 15, 1981, APPROPRIATED "SUCH AMOUNTS AS MIGHT BE NECESSARY FOR PROJECTS OR ACTIVITIES" FOR WHICH MONEYS WOULD BE AVAILABLE IN THE DEPARTMENTS OF LABOR, HEALTH AND HUMAN SERVICES, AND EDUCATION, AND RELATED AGENCIES APPROPRIATION ACT, 1982. H.R. 4560, AS PASSED BY THE HOUSE AND REPORTED TO THE SENATE ON NOVEMBER 9, 1981, PROVIDED FUNDING FOR THE OLDER AMERICANS ACT OF 1965. SECTION 509 OF H.R. 4560 RESTRICTED THE USE OF MONEYS APPROPRIATED BY THE ACT FOR CERTAIN LOBBYING PURPOSES:

"NO PART OF ANY APPROPRIATION CONTAINED IN THIS ACT SHALL BE USED, OTHER THAN FOR NORMAL AND RECOGNIZED EXECUTIVE-LEGISLATIVE RELATIONSHIPS, FOR PUBLICITY OR PROPAGANDA PURPOSES, FOR THE PREPARATION, DISTRIBUTION, OR USE OF ANY KIT, PAMPHLET, BOOKLET, PUBLICATION, RADIO, TELEVISION, OR FILM PRESENTATION DESIGNED TO SUPPORT OR DEFEAT LEGISLATION PENDING BEFORE THE CONGRESS, EXCEPT IN PRESENTATION TO THE CONGRESS ITSELF.

"NO PART OF ANY APPROPRIATION CONTAINED IN THIS ACT SHALL BE USED TO PAY THE SALARY OR EXPENSES OF ANY GRANT OR CONTRACT RECIPIENT OR AGENT ACTING FOR SUCH RECIPIENT TO ENGAGE IN ANY ACTIVITY DESIGNED TO INFLUENCE LEGISLATION OR APPROPRIATIONS PENDING BEFORE THE CONGRESS."

AS THE UNDERLINED SEGMENTS ABOVE INDICATE, FUNDS APPROPRIATED TO CARRY OUT THE OLDER AMERICANS ACT MAY NOT BE USED TO LOBBY MEMBERS OF THE FEDERAL CONGRESS BUT NO RESTRICTION IS MADE ON THEIR USE FOR THE LOBBYING OF STATE LEGISLATORS.

ON THE OTHER HAND, WE FOUND THAT NEITHER THE OLDER AMERICANS ACT NOR DEPARTMENT OF HEALTH AND HUMAN SERVICES (HHS) IMPLEMENTING REGULATIONS CONTAINED IN 45 C.F.R. PART 1321 EXPLICITLY AUTHORIZED SUCH ACTIVITIES. ALTHOUGH THESE STATUTORY AND REGULATORY PROVISIONS CALL FOR ADVOCACY ON BEHALF OF THE ELDERLY, THEY DO NOT AUTHORIZE ACTION ON THE PART OF PROGRAM OFFICIALS TO ENCOURAGE MEMBERS OF THE PUBLIC TO CONTACT THEIR STATE AND LOCAL REPRESENTATIVES URGING THEM TO SUPPORT OR OPPOSE LEGISLATION. HOWEVER, CONFLICTING INTERPRETATIONS MAY ARISE AS TO THE MEANING OF SECTION 3025(A)(1)(D)'S ADJURATION TO STATE AGENCIES TO

"SERVE AS AN EFFECTIVE AND VISIBLE ADVOCATE FOR THE ELDERLY BY REVIEWING AND COMMENTING UPON ALL STATE PLANS, BUDGETS, AND POLICIES WHICH AFFECT THE ELDERLY AND PROVIDING TECHNICAL ASSISTANCE TO ANY AGENCY, ORGANIZATION, ASSOCIATION, OR INDIVIDUAL REPRESENTING THE NEEDS OF THE ELDERLY."

ACCORDINGLY, WE HAVE REFERRED THIS MATTER TO THE SECRETARY HHS FOR CONSIDERATION OF WHETHER REGULATIONS GOVERNING THE STATE LONG TERM CARE OMBUDSMAN PROGRAM SHOULD BE CLARIFIED EITHER TO PROHIBIT OR AUTHORIZE INDIRECT LOBBYING AT THE STATE AND LOCAL GOVERNMENT LEVEL.