1975, December, Pg. 2441. Attorney General's Opinions.

4 Colo.Law. 2441

Colorado Lawyer

1975.

1975, December, Pg. 2441.

Attorney General's Opinions

2441Vol. 4, No. 12, Pg. 2441Attorney General's OpinionsOpinion No. 75-0005August 28, 1975Dr. Henry A. FoleyExecutive DirectorDepartment of Social Services1575 Sherman StreetDenver, Colorado 80203Dear Dr. Foley:This is in reply to your request for an Attorney General's opinion on the following:Question IWhether the Colorado Department of Social Services has statutory authority to continue the program of assistance to the medically indigent by disbursing the funds appropriated therefor in S.B. 468?

Question II

Whether the delegation of authority by the General Assembly to the Colorado Department of Social Services to establish and administer welfare programs is accompanied by the minimum standards required by the Colorado Constitution?

Answer I

The Colorado Social Services Code, C.R.S. 1973, § 26-1-101 et seq., provides sufficient statutory authority for a program of assistance to the medically indigent. Consideration of the appropriation for the medically indigent program in conjunction with the authority which the legislature has delegated to the Colorado Department of Social Services to provide a broad spectrum of welfare benefits leads to the conclusion that establishment of such program is within the lawfully delegated authority of the agency.

Answer IIThe provisions of the Colorado Social Services Code satisfy the minimum requirements imposed by the Colorado Constitution for a vaiid delegation of authority by the General Assembly to an administrative agency. The statute establishes certain standards and objectives which govern the activity of the Colorado Department of Social Services. These standards are amplified by the specific restrictions which the General Assembly has imposed upon the funds appropriated for the medically indigent program. Moreover, the appropriation by the General Assembly for the second year of operation of the assistance program for the medically indigent constituted a ratification and confirmation of the implementation of such program by the Colorado Department of Social Services.

Facts

In 1974, the General Assembly appropriated funds for a special purpose welfare program to provide care to indigent patients

2442in hospitals and health care centers owned by municipalities, counties, and hospital districts, 1974 Colo. Sess. Laws, Ch. 22 at 157. Former Attorney General John Moore issued an opinion, No. 74-0033, August 15, 1974, concluding that sufficient statutory authority existed for the Colorado Department of Social Services to disburse such funds in accordance with the appropriation made by the General Assembly. In October 1974 the Colorado Board of Social Services promulgated rules and regulations implementing the program of assistance for the medically indigent.

In 1975, the General Assembly enacted an appropriation bill, S.B. 468, which provides as follows:(E) Hospitals and Health Centers---Care of Indigent Patients as determined by the June 1, 1972 Inpatient and Outpatient Ability to Pay Scale at a rate not to exceed charges for similar medical care and indigency at Colorado General Hospital or actual charges, whichever is less, except that no reimbursement shall be made until proof of payment by the patient of a minimum charge of $1.00 for outpatient and $10.00 for inpatient care has been submitted [fn. omitted].

Item & Subtotal: $10,000,000

General Fund: $10,000,000

Analysis IThe Colorado Constitution, Article V, Section 32, provides as follows:Appropriation bills. The general appropriation bill shall embrace nothing but appropriations for the expense of the executive, legislative and judicial departments of the state, state institutions, interest on the public debt and for public schools. All other appropriations shall be made by separate bills, each embracing but one subject.

The Colorado Supreme Court has held that Article V, Section 32 prohibits the legislature from utilizing the general appropriation bill for the two-fold purpose of creating laws, and also appropriating money to carry them into effect. People v. Spruance, 8 Colo. 307, 6 P. 831 (1885). In approving this rule in People v. O'Ryan, 71 Colo. 69, 204 P. 86 (1922), the court held that the General Assembly could not properly include funds for the salary of an investigator in the general appropriation bill without substantive legislation to establish the position.

The appropriation for the medically indigent program is not subject to the constitutional defect which existed in People v. O'Ryan, supra, because authorization for a program of assistance to the medically indigent is contained within the broad authority delegated by the General Assembly to the Colorado Department of Social Services to provide programs of public assistance and welfare. C.R.S. 1973, § 26-1-102 provides: It is the purpose of this title to promote the public health and welfare of the people of the state of Colorado by providing through the state department of social services, and through the county departments in accordance with the state department rules and regulations, programs relating to public assistance and welfare, including but not limited to assistance payments and social services; medical assistance; child welfare services; child care; protective services for the mentally retarded; programs for the aging; rehabilitation; and veterans' affairs. Such programs are intended to assist individuals and families to attain or retain their capabilities for independence, self-care, and self-support insofar as possible. The state department is authorized and directed to cooperate with and utilize the available resources of the federal government and private individuals and organizations for these programs. [Emphasis added.]

The quoted language indicates that the General Assembly did not limit the establishment of welfare programs in Colorado to those specifically enumerated. The list of named programs is preceded by the phrase ". . . including but not limited to. . . ." It cannot be said that the use of the phrase "... including but not limited to. . ." by

2443the General Assembly was indiscriminate and without significance because when it desired to place restrictions upon the authority of the Department of Social Services to engage in certain activities, it chose language which explicitly expressed that intent. See, e.g., C.R.S. 1973, § 26-4-105. The medically indigent program comes squarely within the legislative mandate to establish programs which assist persons to attain or retain their capabilities for independence, self-care, and self-support.

An examination of C.R.S. 1973, § 26-1-108 corroborates the conclusion that the General Assembly authorized the Department of Social Services to establish additional welfare programs. In § 26-1-108 the General Assembly vested broad discretion in the Department of Social Services to define and structure the welfare programs which it administers. C.R.S. 1973, § 26-1-108(1)(b) authorizes the Colorado Board of Social Services to issue rules governing (1) program scope and content and (2) requirements, obligations and rights of clients, recipients, vendors, providers, and other persons affected by acts of the state department.

Finally, one should note that C.R.S. 1973, § 26-1-111(2) specifically provides:The state department shall:

* * *

(i) Administer such additional public assistance and welfare activities and functions as may be vested in it pursuant to law.

An appropriation bill constitutes law within the meaning of C.R.S. 1973, § 26-1-111(2)(i). See MacManus v. Love, 179 Colo., 218, 499 P.2d 609 (1972); Johnson v. McDonald, 97 Colo. 324, 49 P.2d 1017 (1935); Colorado Constitution, Art. V, Sec. 33. Thus, I conclude that Article V, Section 32 of the Colorado Constitution does not present an impediment to the Department of Social Services' expenditure of funds appropriated for the medically indigent in S.B. 468.

Analysis IIThe statutory provisions discussed above delineate the authority which the General Assembly has delegated to the Department of Social Services to provide a broad range of welfare benefits to citizens of Colorado. These statutory provisions satisfy the minimum requirements imposed by the Colorado Constitution for a valid delegation of authority by the General Assembly to an administrative agency. In Swisher v. Brown, 157 Colo. 378, 402 P.2d 626 (1965), the Colorado Supreme Court stated the test for determining whether a legislative delegation of authority is proper as follows: The constitutional question raised is whether, in delegating such authority, the legislature completed its job of making the law by establishing a definite plan or framework for the law's operation. The legislature does not abdicate its function when it describes what job must be done, who must do it, and the scope of his authority. In our complex economy, that indeed is frequently the only way in which the legislative process can go forward.

The test enunciated in Swisher, supra, has been reiterated in subsequent cases. Lloyd A. Fry Roofing Co. v. Department of Health Air Pollution Variance Board, 179 Colo. 223, 499 P.2d 1176 (1972); People v. Giordano, 173 Colo. 567, 481 P.2d 415 (1971); Asphalt Paving Co. v. Board of County...

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