Legislation (524L)-Winter 2000
Professor Martha Dragich
This is a closed book examination. You may not refer to any materials whatsoever (other than those provided as part of this examination), including textbook, notes, or outlines. This examination is governed by provisions of the law school's Honor Code. This examination counts for 80% of your final grade for the course.
The examination consists of one question and 21 pages. Please check immediately to make certain that your copy includes all the pages. You must return the examination along with your bluebooks at the end of the examination. You will have three (3) hours in which to complete the examination.
Do not remove any pages from your bluebooks. If you have written matter that, upon reflection, you do not wish me to read, please draw an "X" across it and write "OMIT" in the margin. I will neither read nor consider any material so marked.
This examination question presents a significant amount of material to read. You would be well-advised to spend considerable time reading this material carefully and thinking about your answer. It is possible to write a very good answer, thorough and precise, in a relatively few pages. Your analysis should discuss all issues that, in your judgment, are necessary to a sound construction of the statute. In addition to presenting your client's position, your analysis should refute any major counterarguments likely to be raised by the other side. I have provided a variety of materials that I think an attorney would consult in attempting to answer this question. All are potentially relevant, but a good answer need not necessarily draw on all of them.
In the course of answering the question, you may find it necessary to rely on facts or assumptions not included in the examination materials. I will accept as true any fact or assumption you state, so long as it is not flatly contradicted by the materials I have provided. Likewise, for purposes of plain meaning analysis (if any), you may state the common meaning for a term. I will accept any reasonable definition you supply. I have elected not to provide any dictionary definitions.
For purposes of this examination, you may assume that doctrines, tests, and methods of statutory construction applicable to federal statutes also apply to Missouri statutes.
In grading, primary emphasis will be placed on the content of the answer, including identification of issues and cogency of analysis. Less weight will be placed on polished writing, but that does not mean that clarity of expression is irrelevant.
Your firm represents several nursing home operators doing business in the State of Missouri. Your clients are aware of legislation, recently passed by the Missouri General Assembly as Senate Bill No. 326, to establish "demonstration projects" for the care of residents suffering from Alzheimer's disease. The demonstration projects will lead to the establishment of a licensure category for facilities caring for Alzheimer's patients and to the development of standards for such care. The new legislation directs the Missouri Division of Aging (a state agency) to select a few provider organizations to participate in the demonstration projects. This new legislation will be codified in Chapter 198 of the Revised Statutes of Missouri. Chapter 198 covers "Convalescent, Nursing, and Boarding Homes." [Relevant portions of this legislation appear at pages 5-8 of this examination.]
The care of Alzheimer's patients represents the major growth area in the long-term care industry, owing to the increasing number of persons who live long enough to develop this illness and the inability of such persons to care for themselves. The care of Alzheimer's residents is significantly different from the care required by more traditional nursing home residents, in that Alzheimer's victims are physically relatively healthy and active, but mentally impaired. They require significant supervision and a calm, home-like environment, but usually do not require a great deal of medical treatment. Traditional nursing home residents, of course, have significant physical illnesses or disabilities for which they require skilled nursing care, and exhibit a wide range of mental capabilities. Many traditional residents are immobile and require assistance with bathing, dressing, feeding, and other daily activities. To the extent that residents with Alzheimer's require less medical care and less assistance with daily activities, it should be possible to provide care at lower cost than would be the case for traditional nursing home residents. Thus, long term care of Alzheimer's residents promises to be lucrative. The trend, according to industry publications, is to house Alzheimer's residents in separate facilities from traditional nursing home residents in view of the distinct type of care required by each group. Accordingly, S.B. 326 requires that demonstration project providers develop programs exclusively for the care of persons with Alzheimer's disease.
Your clients are concerned that the provider organizations selected to participate in the demonstration projects will have a significant jump on the rest of the industry in serving this new and growing market. For example, your clients are concerned that after the demonstration project is concluded, participants in the project will receive licenses to operate facilities for Alzheimer's patients. The licensing process for nursing homes is difficult, lengthy, and expensive. In addition to other requirements, license applicants must secure a Certificate of Need. The Missouri Health Facilities Review Committee has discretion to determine which new institutional health services are "needed." It is likely that the Committee will conclude that additional facilities for this type of care (beyond those initially included in the demonstration project) are not needed. Moreover, even if your clients eventually secure licenses to operate facilities to care for residents suffering from Alzheimer's disease, the demonstration project participants would already be up and running and, likely, recognized as expert in such care. Thus, your clients believe that participation in the demonstration project is of significant financial value.
Furthermore, your clients are concerned about favoritism in selecting the demonstration project participants. S.B. 326 outlines a selection process, not a competitive bid process. The Division of Aging has recently promulgated proposed rules establishing the selection process. [Relevant portions of the proposed rules appear at pages 18-19 of this examination.] Assume that the Division of Aging's proposed rule process complies with all procedural requirements for valid rulemaking under Missouri law, and that it is using a typical comment procedure.
Your clients believe they are well equipped to participate in the demonstration project and that they would be selected if the process were based on fair, stated criteria. But because of the favoritism concern, they fear they will have little chance of being selected. The new legislation describes various categories of providers to be represented in the project. Your clients do not have beds available under existing licenses to be converted exclusively to this use. They, along with many other providers, will be in competition for a maximum of ten new licenses for the project. Your client does not have the financial resources to design and operate a 120-bed facility exclusively for the care of residents with Alzheimer's disease, and does not currently operate a facility in St. Louis County, the only county that meets the description in Section 5.1 (2) of the new legislation.
Your clients therefore wish to challenge the new legislation if there is any plausible basis for doing so. The senior partner of the firm has informed you that the state's general procurement statutes specify a competitive bidding procedure for nearly all procurements. She has asked you to review these provisions, codified in Chapter 34, to determine whether they afford a basis for challenging S.B. 326. [These provisions appear at pages 9-14 of this examination. All provisions are currently in effect except where otherwise specifically noted.] Your law clerk has gathered information on the arrangement of the Revised Statutes of Missouri. [This information appears at pages 15-17 of this examination.]
The senior partner's theory is that the new legislation, along with the proposed rules, contravenes the state's general procurement provisions by allowing the Division of Aging to enter into contracts with the providers it selects through a process other than competitive bidding. In evaluating this theory, assume that the State (through the Division of Aging) will purchase residential care services for the Alzheimer's residents who participate in the demonstration projects. Section 5.2 (1) of S.B. 326 provides that for the duration of the demonstration projects, the Division of Aging will reimburse the actual costs of the projects to the participating providers. The value of the contractual services purchased under these demonstration projects is estimated to be in excess of $1,000,000.00 per year per facility.
The senior partner has also requested that you outline any other promising basis for challenging S.B. 326. You have already determined that S.B. 326 presents no clear title, single subject, or original purpose problems under the Missouri Constitution. At your request, your law clerk has provided you with a copy of Mo. Const. Art. 3, § 40(30) concerning special laws. [This provision appears at page 8 of this examination.]
Using the materials provided, develop arguments challenging S.B. 326. Assume that no other relevant statutes, rules, regulations, or judicial decisions exist. You are not responsible for knowledge of any substantive law relating to nursing home administration, regulation, or standards of care, except to the extent provided in these examination materials. You are not responsible for determining how the demonstration project contracts should be awarded, but only for determining whether the proposed method is lawful.
No litigation or administrative action has yet been filed. Therefore, you need not be concerned about the procedural posture of the case, the standard of review, the specific relief available, or similar matters. Rather, your analysis will be a key element in the senior partner's formulation of a strategy for challenging S.B. 326.
FIRST REGULAR SESSION
[TRULY AGREED TO AND FINALLY PASSED]
CONFERENCE COMMITTEE SUBSTITUTE FOR
HOUSE SUBSTITUTE FOR
SENATE BILL NO. 326
90TH GENERAL ASSEMBLY
To repeal sections 197.310, 197.315, 197.325, 197.330, 197.335, 197.350, 197.360, 197.365, 198.015, 198.070 and 198.073, RSMo 1994, and sections 197.305, 197.313, 197.316, 197.317, 197.318, 197.320, 198.067 and 198.439, RSMo Supp. 1998, relating to nursing home reimbursement and regulation, and to enact in lieu thereof thirty new sections relating to the same subject, with an emergency clause for certain sections, expiration dates for certain
sections and penalty provisions.
Be it enacted by the General Assembly of the State of Missouri, as follows:
Section A. Sections 197.310, 197.315, 197.325, 197.330, 197.335, 197.350, 197.360, 197.365, 198.015, 198.070 and 198.073, RSMo 1994, and sections 197.305, 197.313, 197.316, 197.317, 197.318, 197.320, 198.067 and 198.439, RSMo Supp. 1998, are repealed and thirty new sections enacted in lieu thereof, to be known as sections 197.305, 197.310, 197.315, 197.316,
197.317, 197.318, 197.320, 197.325, 197.330, 197.335, 198.015, 198.067, 198.070, 198.073, 198.439, 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 and 15, to read as follows:
Section 5.1.The division of aging shall develop and implement a demonstration project designed to establish a licensure category for health care facilities that wish to provide treatment to persons with Alzheimer's disease or Alzheimer's related dementia. The division shall also:
(1) Inform potential providers of the demonstration project and seek letters of intent;
(2) Review letters of intent and select provider organizations to participate in the demonstration project. Ten such organizations may develop such projects using an existing license and additional organizations shall be newly licensed facilities with no more than thirty beds per project. One demonstration project shall be at a stand‑alone facility of no more than one hundred twenty beds designed and operated exclusively for the care of residents with Alzheimer's disease or dementia within a county of the first classification with a charter form of government with a population over nine hundred thousand. A total of not more than three hundred beds may be newly licensed through the demonstration projects. All projects shall maintain their pilot status until a complete evaluation is completed by the division of aging, in conjunction with a qualified Missouri school or university, and a written determination is made from such evaluation that the pilot project is successful;
(3) Monitor the participants' compliance with the criteria established in this section;
(4) Recommend legislation regarding the licensure of dementia‑specific residential care based on the results of the demonstration project; and
(5) Submit a report regarding the division's activities and recommendations for administrative or legislative action on or before November fifteenth of each year to the governor, the president pro tem of the senate and the speaker of the house of representatives.
2. The director of the division of aging shall:
(1) Develop a reimbursement methodology to reasonably and adequately compensate the pilot projects for the actual costs of operation of the project, and require the filing of annual cost reports by each participating facility;
(2) Process the license applications of project participants;
(3) Monitor each participant to assure its compliance with the requirements and that the life, health and safety of residents is assured;
(4) Require each participating facility to complete a minimum data set form for each resident occupying a pilot bed;
(5) Require the division of aging to assign a single team of the same surveyors to inspect and survey all participating facilities at least twice a year for the entire period of the project; and
(6) Submit to the president pro tem of the senate and speaker of the house of representatives copies of any statements of deficiencies, plans of correction and complaint investigation reports applying to project participants.
3. Project participants shall:
(1) Be licensed by the division of aging;
(2) Provide care only to persons who have been diagnosed with Alzheimer's disease or Alzheimer's related dementia;
(3) Have buildings and furnishings that are designed to provide for the resident's safety. Facilities shall have indoor and outdoor activity areas, and electronically controlled exits from the buildings and grounds to allow residents the ability to explore while preventing them from exiting the facility's grounds unattended;
(4) Be staffed twenty‑four hours a day by the appropriate number and type of personnel necessary for the proper care of residents and upkeep of the facility;
(5) Conduct special staff training relating to the needs, care and safety of persons with Alzheimer's disease or Alzheimer's related dementia within the first thirty days of employment;
(6) Utilize personal electronic monitoring devices for any resident whose physician recommends use of such device;
(7) Permit the resident's physician, in consultation with the family members or health care advocates of the resident, to determine whether the facility meets the needs of the resident;
(8) Be equipped with an automatic sprinkler system, in compliance with the National Fire Protection Association Code 13 or National Fire Protection Association Code 13R, and an automated fire alarm system and smoke barriers in compliance with the 1997 Life Safety Codes for Existing Health Care Occupancy; and
(9) Implement a social model for the residential environment rather than an institutional medical model.
4. For purposes of this section, "health care facilities for persons with Alzheimer's disease or Alzheimer's related dementia" means facilities that are specifically designed and operated to provide elderly individuals who have chronic confusion or dementia illness, or both, with a safe,
structured but flexible environment that encourages physical activity through a well developed recreational and aging in place [sic], and activity program. Such program shall continually strive to promote the highest practicable physical and mental abilities and functioning of each resident.
Section 6. In consultation with consumers, providers and others, the division shall promulgate rules and regulations to implement the provisions of sections 1 to 6 of this act.
[Portions of S.B. 326 not relevant to this examination question have been deleted. Sections 5 and 6, set forth above, are new provisions and do not amend any prior legislation.]
The Missouri Constitution, Article 3, provides, in pertinent part, as follows:
§40. Limitations on passage of local and special laws
The general assembly shall not pass any local or special law:
(30) where a general law can be made applicable, and whether a general law could have been made applicable is a judicial question to be judicially determined without regard to any legislative assertion on the subject.
REVISED STATUTES OF MISSOURI
TITLE IV. EXECUTIVE BRANCH
CHAPTER 34. STATE PURCHASING AND PRINTING
1. The term "department" as used in this chapter shall be deemed to mean department, office, board, commission, bureau, institution, or any other agency of the state, except the legislative and judicial departments.
2. The term "negotiation" as used in this chapter means the process of selecting a contractor by the competitive methods described in this chapter, whereby the commissioner of administration can establish any and all terms and conditions of a procurement contract by discussion with one or more prospective contractors.
3. The term "purchase" as used in this chapter shall include the rental or leasing of any equipment, articles or things.
4. The term "supplies" used in this chapter shall be deemed to mean supplies, materials, equipment, contractual services and any and all articles or things, except for utility services regulated under chapter 393, RSMo, or as in this chapter otherwise provided.
(R.S.1939, § 14599. Amended by L.1945, p. 1428, § 73; L.1965, p. 142, § 1. Amended by L.1995, H.B. No. 562, § A.)
[Prior to its amendment in 1995, R.S.Mo. §34.010 read as follows:
34.010.Definitions. -1. "Contractual services" shall include all telephone, telegraph, postal, electric light and power service, and water, towel, and soap service.
2. The term "department" as used in this chapter shall be deemed to mean department, office, board, commission, bureau, institution, or any other agency of the state, except the legislative and judicial departments.
3. The term "purchase" as used in this chapter shall include the rental or leasing of any equipment, articles, or things.
4. The term "supplies" used in this chapter shall be deemed to mean supplies, materials, equipment, contractual services and any or all articles or things, except as in this chapter otherwise provided.]
34.030. Shall purchase all supplies and lands
The commissioner of administration shall purchase all supplies for all departments of the state, except as in this chapter otherwise provided. The commissioner of administration shall negotiate all leases and purchase all lands, except for such departments as derive their power to acquire lands from the constitution of the state.
(R.S.1939, § 14590. Amended by L.1945, p. 1428, § 64.)
34.040. Purchases to be made on competitive bid, when; solicitation of bids; letting of contract; standard specifications, when; bond or deposit
1. All purchases in excess of three thousand dollars shall be based on competitive bids, except as otherwise provided in this chapter.
2. On any purchase where the estimated expenditure shall be twenty-five thousand dollars or over, except as provided in subsection 5 of this section, the commissioner of administration shall:
(1) Advertise for bids in at least two daily newspapers of general circulation in such places as are most likely to reach prospective bidders and may advertise in at least two weekly minority newspapers and may provide such information through an electronic medium available to the general public at least five days before bids for such purchases are to be opened. Other methods of advertisement, which may include minority business purchase councils, however, may be adopted by the commissioner of administration when such other methods are deemed more advantageous for the supplies to be purchased;
(2) Post a notice of the proposed purchase in his or her office; and
(3) Solicit bids by mail or other reasonable method generally available to the public from prospective suppliers.All bids for such supplies shall be mailed or delivered to the office of the commissioner of administration so as to reach such office before the time set for opening bids.
3. The contract shall be let to the lowest and best bidder. The commissioner of administration shall have the right to reject any or all bids and advertise for new bids, or purchase the required supplies on the open market if they can be so purchased at a better price. When bids received pursuant to this section are unreasonable or unacceptable as to terms and conditions, noncompetitive, or the low bid exceeds available funds and it is determined in writing by the commissioner of administration that time or other circumstances will not permit the delay required to resolicit competitive bids, a contract may be negotiated pursuant to this section, provided that each responsible bidder who submitted such bid under the original solicitation is notified of the determination and is given a reasonable opportunity to modify their bid and submit a best and final bid to the state. In cases where the bids received are noncompetitive or the low bid exceeds available funds, the negotiated price shall be lower than the lowest rejected bid of any responsible bidder under the original solicitation.
4. All bids shall be based on standard specifications wherever such specifications have been approved by the commissioner of administration. The commissioner of administration shall make rules governing the delivery, inspection, storage and distribution of all supplies so purchased and governing the manner in which all claims for supplies delivered shall be submitted, examined, approved and paid. The commissioner shall determine the amount of bond or deposit and the character thereof which shall accompany bids or contracts.
5. The department of natural resources may, without the approval of the commissioner of administration required pursuant to this section, enter into contracts of up to five hundred thousand dollars to abate illegal waste tire sites pursuant to section 260.276, RSMo, when the director of the department determines that urgent action is needed to protect public health, safety, natural resources or the environment.The department shall follow bidding procedures pursuant to this section and may promulgate rules necessary to establish such procedures. Any rule or portion of a rule, as that term is defined in section 536.010, RSMo, that is created under the authority delegated in this section shall become effective only if it complies with and is subject to all of the provisions of chapter 536, RSMo, and, if applicable, section 536.028, RSMo. This section and chapter 536, RSMo, are nonseverable and if any of the powers vested with the general assembly pursuant to chapter 536, RSMo, to review, to delay the effective date or to disapprove and annul a rule are subsequently held unconstitutional, then the grant of rulemaking authority and any rule proposed or adopted after August 28, 1999, shall be invalid and void.
(R.S.1939, § 14591. Amended by L.1945, p. 1428, § 65; L.1983, H.B. No. 384, p. 281, § 1; L.1990, S.B. Nos. 808 & 672, § B. Amended by L.1995, H.B. No. 562, § A; L.1999, H.B. Nos. 603, 722 & 783, § A.)
34.042. Competitive proposals in lieu of competitive bidding, when; advertisements; letting of contract, negotiations; information to general assembly
1. When the commissioner of administration determines that the use of competitive bidding is either not practicable or not advantageous to the state, supplies may be procured by competitive proposals.The commissioner shall state the reasons for such determination, and a report containing those reasons shall be maintained with the vouchers or files pertaining to such purchases. All purchases in excess of five thousand dollars to be made under this section shall be based on competitive proposals.
2. On any purchase where the estimated expenditure shall be twenty-five thousand dollars or over, the commissioner of administration shall:
(1) Advertise for proposals in at least two daily newspapers of general circulation in such places as are most likely to reach prospective offerors and may advertise in at least two weekly minority newspapers and may provide such information through an electronic medium available to the general public at least five days before proposals for such purchases are to be opened. Other methods of advertisement, however, may be adopted by the commissioner of administration when such other methods are deemed more advantageous for the supplies to be purchased;
(2) Post notice of the proposed purchase; and
(3) Solicit proposals by mail or other reasonable method generally available to the public from prospective offerors.
All proposals for such supplies shall be mailed or delivered to the office of the commissioner of administration so as to reach such office before the time set for opening proposals. Proposals shall be opened in a manner to avoid disclosure of contents to competing offerors during the process of negotiation.
3. The contract shall be let to the lowest and best offeror as determined by the evaluation criteria established in the request for proposal and any subsequent negotiations conducted pursuant to this subsection. In determining the lowest and best offeror, as provided in the request for proposals and under rules promulgated by the commissioner of administration, negotiations may be conducted with responsible offerors who submit proposals selected by the commissioner of administration on the basis of reasonable criteria for the purpose of clarifying and assuring full understanding of and responsiveness to the solicitation requirements. Those offerors shall be accorded fair and equal treatment with respect to any opportunity for negotiation and subsequent revision of proposals. Revisions may be permitted after submission and before award for the purpose of obtaining best and final offers. In conducting negotiations there shall be no disclosure of any information derived from proposals submitted by competing offerors.The commissioner of administration shall have the right to reject any or all proposals and advertise for new proposals or purchase the required supplies on the open market if they can be so purchased at a better price.
4. The commissioner shall make available, upon request, to any members of the general assembly, information pertaining to competitive proposals, including the names of bidders and the amount of each bidder's offering for each contract.
(L.1990, S.B. Nos. 808 & 672, § B(§ 4). Amended by L.1995, H.B. No. 562, § A.)
34.043. Competitive bidding--waiver of permitted, when
The commissioner of administration may waive competitive bids for the purchase of supplies for the purpose of resale to the general public in concession operations controlled by the state.
(L.1990, S.B. Nos. 808 & 672, § B(§ 5).)
34.044. Single source for supplies, waiver of competitive bids or proposals--rescission of waiver--advertisement, waiver
1. The commissioner of administration may waive the requirement of competitive bids or proposals for supplies when the commissioner has determined in writing that there is only a single feasible source for the supplies. Immediately upon discovering that other feasible sources exist, the commissioner shall rescind the waiver and proceed to procure the supplies through the competitive processes as described in this chapter. A single feasible source exists when:
(1) Supplies are proprietary and only available from the manufacturer or a single distributor;or
(2) Based on past procurement experience, it is determined that only one distributor services the region in which the supplies are needed; or
(3) Supplies are available at a discount from a single distributor for a limited period of time.
2. On any single feasible source purchase where the estimated expenditure shall be five thousand dollars or over, the commissioner of administration shall post notice of the proposed purchase. Where the estimated expenditure is twenty-five thousand dollars or over, the commissioner of administration shall also advertise the commissioner's intent to make such purchase in at least two daily newspapers of general circulation in such places as are most likely to reach prospective bidders or offerors and may provide such information through an electronic medium available to the general public at least five days before the contract is to be let. Other methods of advertisement, however, may be adopted by the commissioner of administration when such other methods are deemed more advantageous for the supplies to be purchased. The requirement for advertising may be waived, if not feasible, due to the supplies being available at a discount for only a limited period of time.
(L.1995, H.B. No. 562, § A.)
34.045. Emergency procurements, waiver of competitive bids or proposals
The commissioner of administration may waive the requirement of competitive bids or proposals for supplies when the commissioner of administration has determined that there exists a threat to life, property, public health or public safety or when immediate expenditure is necessary for repairs to state property in order to protect against further loss of, or damage to, state property, to prevent or minimize serious disruption in state services or to ensure the integrity of state records. Emergency procurements shall be made with as much competition as is practicable under the circumstances.
(L.1995, H.B. No. 562, § A.)
The Official Manual of the State of Missouri (1999-2000 edition) describes the Department of Administration and the Division of Aging as follows:
The Office of Administration is the state's service and administrative control agency. Created by the General Assembly on January 15, 1973, it combines and coordinates the central management functions of the state government. The chief administrative officer is the commissioner of administration who is appointed by the Governor with the advice and consent of the Senate. The divisions of the Office of Administration are Accountning, Budget and Planning, Design and Construction, Facilities Management, Personnel, and Purchasing and Materials Management (DPMM). The DPMM is responsible for the procurement of all state-required supplies, materials, and professional or general services except for those agencies exempted by law. The DPMM transacts monetary commitments and contracts, executes procurement functions in accordance with applicable statutes, and maximizes competitive procurement and awards on all contracts.
The Division of Aging of the Department of Social Services was created on October 1, 1979. It serves as a central agency to coordinate all programs relating to the lives of older Missourians. Its services include institutional programs which safeguard residents in long-term care facilities. The Division of Aging is responsible for assuring the safety, health, welfare, and rights of persons residing in institutional facilities.
Revised Statutes of Missouri (1994 edition)
Classification and Arrangement
The system of arrangement appearing in this edition is unchanged from that appearing in the 1986 edition and is similar to that used in the General Statutes of 1865.
As so arranged the statutes are classified under titles, each title representing a major field of the law. Within each there is a varying number of chapters.... Each chapter is intended to represent a separate subject within the area indicated by the title. Titles are used purely for convenience, are not part of the law, and should not be used when making citations to the statutes of Missouri.
The chapters are numbered progressively throughout the statutes, without reference to titles.... In each volume there appears an analytical table of contents showing the names of the titles and chapters. A thorough understanding of this table will allow the user in many cases to find the law. One who is familiar with the classification can turn to the place in which the subject for which he is searching is compiled and by turning a few pages can, with reasonable assurance, expect to find the law he seeks.
Analytical Table of Chapters
TITLE I LAWS AND STATUTES
TITLE II SOVEREIGNTY, JURISDICTION AND EMBLEMS
TITLE III LEGISLATIVE BRANCH
TITLE IV EXECUTIVE BRANCH
Chapter 26. Governor and Lieutenant Governor
Chapter 27. Attorney General
Chapter 28. Secretary of State
Chapter 29. State Auditor
Chapter 30. State Treasurer
Chapter 31. Funds of Eleemosynary, Educational and Penal
Chapter 32. State Department of Revenue
Chapter 33. State Financial Administration
Chapter 34. State Purchasing and Printing
Chapter 35. Department of Business and Administration [repealed]
Chapter 36. State Personnel Law (merit system)
Chapter 37. Office of Administration
TITLE V MILITARY AFFAIRS AND POLICE
TITLE VI COUNTY, TOWNSHIP AND POLITICAL SUBDIVISION GOVERNMENT
TITLE VII CITIES, TOWNS AND VILLAGES
TITLE VIII PUBLIC OFFICERS AND EMPLOYEES, BONDS AND RECORDS
TITLE IX SUFFRAGE AND ELECTIONS
TITLE X TAXATION AND REVENUE
TITLE XI EDUCATION AND LIBRARIES
TITLE XII PUBLIC HEALTH AND WELFARE
Chapter 188. Regulation of Abortions
Chapter 189. Aid to Local Governmental Health Facilities
Chapter 190. Emergency Services
Chapter 191. Health and Welfare
Chapter 192. Department of Health
Chapter 193. Vital Statistics
Chapter 194. Death--disposition of dead bodies
Chapter 195. Drug Regulations
Chapter 196. Food, Drugs and Tobacco
Chapter 197. Medical Treatment Facility Licenses
Chapter 198. Convalescent, Nursing and Boarding Homes
Chapter 199. Rehabilitation Center; Tuberculosis Testing and Commitment
Chapter 200. State Cancer Center [repealed]
Chapter 201. Crippled Children
Chapter 202. Department of Mental Health [repealed]
Chapter 203. Air Conservation
Chapter 204. Common Sewer Districts in Certain Areas
Chapter 205. County Health and Welfare Programs
Chapter 206. Hospital District Law
Chapter 207. Division of Family Services
Chapter 208. Old Age Assistance; Aid to Dependent Children; General relief
Chapter 209. Aid to the Blind
Chapter 210. Child Protection and Reformation
Chapter 211. Juvenile Courts
Chapter 212. Soldiers' Homes [repealed]
Chapter 213. Human Rights
Chapter 214. Cemeteries
Chapter 215. State Housing
TITLE XIII CORRECTIONAL AND PENAL INSTITUTIONS
TITLE XIV ROADS AND WATERWAYS
TITLE XV LANDS, LEVEES, DRAINAGE, SEWERS AND PUBLIC WATER SUPPLY
TITLE XVI CONSERVATION, RESOURCES AND DEVELOPMENT
TITLE XVII AGRICULTURE AND ANIMALS
TITLE XVIII LABOR AND INDUSTRIAL RELATIONS
TITLE XIX MOTOR VEHICLES, WATERCRAFT AND AVIATION
TITLE XX ALCOHOLIC BEVERAGES
TITLE XXI PUBLIC SAFETY AND MORALS
TITLE XXII OCCUPATIONS AND PROFESSIONS
TITLE XXIII CORPORATIONS, ASSOCIATIONS AND PARTNERSHIPS
TITLE XXIV BUSINESS AND FINANCIAL INSTITUTIONS
TITLE XXV INCORPORATION AND REGULATION OF CERTAIN UTILITIES AND CARRIERS
TITLE XXVI TRADE AND COMMERCE
TITLE XXVII DEBTOR-CREDITOR RELATIONS
TITLE XXVIII CONTRACTS AND CONTRACTUAL RELATIONS
TITLE XXIX OWNERSHIP AND CONVEYANCE OF PROPERTY
TITLE XXX DOMESTIC RELATIONS
TITLE XXXI TRUSTS AND ESTATES OF DECEDENTS AND PERSONS UNDER DISABILITY
TITLE XXXII COURTS
TITLE XXXIII EVIDENCE AND LEGAL ADVERTISEMENTS
TITLE XXXIV JURIES
TITLE XXXV CIVIL PROCEDURE AND LIMITATIONS
TITLE XXXVI STATUTORY ACTIONS AND TORTS
TITLE XXXVII CRIMINAL PROCEDURE
TITLE XXXVIII CRIMES AND PUNISHMENT; PEACE OFFICERS AND PUBLIC DEFENDERS
TITLE XXXIX CONDUCT OF PUBLIC BUSINESS
TITLE XL ADDITIONAL EXECUTIVE DEPARTMENTS
TITLE XLI CODES AND STANDARDS
On April 14, 2000, the Missouri Division of Aging published the following proposed rule (to be codified, if finally approved, in the Code of State Regulations (CSR)). [Irrelevant portions omitted.]
13 CSR 15-10.070 Alzheimer's Demonstration Projects
PURPOSE: This rule is being promulgated to describe the general requirements and process by which project participants will be selected in order to implement Alzheimer's Demonstration Projects in accordance with S.B. 326.
(1) Participation in the Alzheimer's Demonstration Projects will be solicited by the Division of Aging by letter to all providers currently licensed by the division and to all interested parties who have advised the division of their interest. The solicitation letters will advise all recipients of the criteria to be used in making the selection.
(2) Potential project participants must respond to the solicitation letter within thirty days of the date received. Proposals must address the criteria contained in the letter.
(3) The criteria utilized to select Alzheimer Demonstration Project participants will be developed by a committee appointed by the director of the Division of Aging consisting of representatives of providers, consumers and professionals in the long-term care industry who possess knowledge of the provision of treatment to individuals with Alzheimer's disease or other related dementias.
(4) Proposals submitted will be screened initially for the ability of project applicants to comply with the minimum requirements set forth in §5 of S.B. 326. Such applicants must provide supported assurances of their ability to achieve initial and continued compliance with all such requirements. Proposals from project applicants which are determined not to meet the minimum requirements shall be removed from consideration.
(5) In addition to the minimum requirements, applicants will also be considered for selection based on their ability to provide the following:
(A) A safe environment for individuals with Alzheimer's disease and other related dementias;
(B) Admission and discharge criteria which effectively identify those individuals for whom the participant is able effectively to provide treatment services;
(C) The provision of services through a social model for the residential environment;
(D) Staffing in sufficient numbers and by appropriately qualified staff in order to meet the needs, on an ongoing basis, of all residents with Alzheimer's disease or other related dementias;
(E) Specialized staff training to the needs, care and safety of individuals with Alzheimer's or other related dementias;
(F) Housing arrangements designed to provide for residents' comfort and safety as well as the provision of services;
(G) Supportive services ancillary to the provision of treatment and which support the treatment provided by the facility; and
(H) Adequate financial support of the facility's demonstration project.
AUTHORITY: S.B. 326 (1999)
NOTICE TO SUBMIT COMMENTS: Anyone may file a statement in support of or in opposition to this Proposed Rule with the Division of Aging. Comments must be received within thirty days after publication of this proposed Rule. No public hearing is scheduled.
The Missouri Court of Appeals, Southern District, construed the precursor of current R.S.Mo. §34.010 as it read in 1975. The court's opinion, so far as pertinent, reads as follows:
456 S.W.2d 123
J. Neil Nielson, Commissioner of Administration,
Best Insurance Co.
Missouri Court of Appeals
Aug. 22, 1975
The question in this case is whether the purchase of insurance is included within the term "contractual services" in R.S. Mo. §34.010.
Best Insurance Company argues that the inclusion of "telephone, telegraph, postal, electric light and power service, and water, towel and soap service," in the definition of "contractual services" excluded any other contractual service. This argument relies upon the canon "expressio unius est exclusio alterius," which means the expression of one thing is the exclusion of another. Accordingly, Best argues that the contractual service of insurance is excluded from the purview of the state purchasing law. No court has previously addressed this issue.
First of all, § 34.030 requires the purchasing agent to purchase all "supplies" for all departments of the state, except as otherwise provided in Chapter 34. Section 34.010.4 defines supplies as follows:
"The term 'supplies' used in this chapter shall be deemed to mean supplies, materials, equipment, contractual services and any and all articles or things, except as in this chapter otherwise provided."
The question still depends on what is meant by "contractual services" as there is no doubt that the purchase of insurance would be purchasing a contractual service. Contractual services is thus defined as § 34.010.1 as follows:
"'Contractual services' shall include all telephone, telegraph, postal, electric light and power service, and water, towel and soap service."
It is our opinion that the application of this canon to § 34.010 is incorrect.Section 34.010(1) clearly states that contractual services shall "include" various enumerated items. The general rule in Missouri is that the use of the word "include" implies that there may be other items which are not mentioned. See St. Louis County v. State Highway Commission, 405 S.W.2d 149 (Mo. 1966); and Lynch v. Gleaner Combine Harvester Corp. 17 S.W.2d 554 (K.C. Mo. App. 1929).
These cases state essentially that the meaning of the word "include" may vary according to its context. Ordinarily, it is not a word of limitation but rather of enlargement. When used in connection with a number of specified objects it implies that there may be others which are not mentioned.
Accordingly, it is our opinion that under Chapter 34, R.S.Mo., relating to the state purchasing agent, the definition of "contractual services" is not limited to those items specifically mentioned. The phrase "contractual services" includes insurance purchased by the state, and, therefore, any such insurance must be purchased pursuant to the provisions of Chapter 34, R.S.Mo., except as otherwise provided by law.