Is a public hospital district (PHD) required to use a small works roster for projects under $350,000?
A PHD is considering offering free mental health services to first responders and employees of businesses in the District who are at risk of contracting COVID-19. The District is also considering offering such services to its employees. Would such a program be permissible under state law?
The District is holding a remote public hearing on a matter of public concern and would like to know if it is required to allow submittal of questions by chat. It would like to request they provide their name also...is that allowed?
I am working on scheduling our next Board meeting. We feel strongly that we don’t want additional foot traffic through our hospital right now. Our Board would like to continue meeting via Zoom for the foreseeable future. Do you know how other hospitals are doing this?
Scroll down to read the answers
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Officials and employees from eligible public hospital districts can use our free one-on-one inquiry service, Ask MRSC.
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Is a public hospital district (PHD) required to use a small works roster for projects under $350,000?
No. There are a number of options available to a PHD depending on the estimated cost of the public works project. MRSC’s Find Your Contracting Requirements is a good tool for understanding bid limits.
Although formal competitive bidding is typically used for larger and more complex projects, it can, in theory, be used for projects of any amount. The small works roster may be used for projects costing up to $350,000. For projects under $75,000, a district has the option (in addition to formal competitive bidding and the small works roster) of using a minimal competition process.
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A PHD is considering offering free mental health services to first responders and employees of businesses in the District who are at risk of contracting COVID-19. The District is also considering offering such services to its employees. Would such a program be permissible under state law?
PHDs are authorized to provide “other health care services” which, as defined in RCW 70.44.007, includes:
- services that promote health, wellness, and prevention of illness and injury; and such other services as are appropriate to the health needs of the population served.
Providing mental health services to residents and employees of a district would fall within this broad definition. With respect to employees of a district, the board could consider making such services available as an employee benefit—which appears to be an increasingly common practice on the part of employers. A board would want to consider whether to offer such benefits temporarily for the duration of the COVID-19 emergency or permanently.
The next question is whether a district may offer mental health services to non-employee first responders and business employees at no charge. In normal times, this would raise concerns about violating the prohibition on gifts of public funds, at least to the extent such services are offered to individuals who are not low-income or infirm.
However, Washington state is in the midst of an emergency, and the Washington Attorney General’s Office has provided guidance on how the current emergency impacts the prohibition on gifts of public funds. If the funds expended (or services provided) constitute a “fundamental purpose of government,” then the prohibition on gifts of public funds does not apply. Making mental health resources available to first responders may constitute a “fundamental purpose” for a PHD, given the definition of “other health care services” quoted above. Such services are likely to help first responders cope with the stress and difficulty of providing care and services during a pandemic.
Whether mental health services can be provided at no cost to business employees is a closer question. The AGO guidance notes that supporting small businesses during a pandemic may be permissible in some cases to protect the health of the regional economy. However, that guidance is more applicable to general-purpose entities (cities and counties) rather than special purpose districts. A PHD would need to justify mental health expenditures for public health purposes and not economic reasons.
That may be possible under the current circumstances. An additional option a district could consider is making free mental health services available only to individuals who qualify as low-income (under a standard adopted by a district to make that determination).
There are a number of policy issues to consider. In addition, this is an issue on which a district should receive input from its legal counsel.
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The District is holding a remote public hearing on a matter of public concern and would like to know if it is required to allow submittal of questions by chat. It would like to request they provide their name also...is that allowed?
There is no requirement in state law to allow the use of the chat function when holding a remote public hearing through a meeting application such as Zoom. In fact, allowing chat creates additional issues that local governments need to take into account.
For remote meetings, it is a policy decision whether to turn off a “chat” feature during public meetings. If the feature is on and used, then the contents should be retained as public records and included as part of your official record of the meeting.
There are several potential problems with using a chat feature during a council meeting. First, not all participants and attendees have access to a chat feature. Those calling in via phone would be excluded from that part of the meeting. Second, chat notes are potentially disruptive because they are like passing notes or texting during the meeting.
Some remote meeting platforms have a “hand raising” feature that can be used instead of “chat” during a public comment period. Turning off the chat feature addresses these concerns provided individuals attending the public hearing can otherwise speak during the public comment period.
Regarding providing names, the OPMA ( RCW 42.30.040) provides that an agency cannot require a meeting attendee to provide his or her name as a condition of attending. However, speaking during public comment or a public hearing is different. Agencies commonly ask individuals speaking at a public meeting to provide their names.
If the District decides to use the chat feature, from a legal standpoint, it can ask users of the chat feature to identify themselves, since by using the feature, they are essentially speaking at the meeting.
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I am working on scheduling our next Board meeting. We feel strongly that we don’t want additional foot traffic through our hospital right now. Our Board would like to continue meeting via Zoom for the foreseeable future. Do you know how other hospitals are doing this?
The Governor’s most recent Emergency Proclamation 20-28.8 extends the “no in-person meeting” requirement through at least September 1, 2020. It does, however, create an exception for local government entities in Phase 3 counties. PHDs in Phase 3 counties have the option of holding in-person meetings, but they are not required to. In addition, the Governor recently reduced the size limits on gatherings in Phase 3 counties from 50 to 10, which presents problems for holding in-person meetings if more than 10 people (including board members, staff and members of the public) are in attendance. If more than 10 people show up in-person, a PHD would need to adjourn or continue the meeting. For more on this, see MRSC’s FAQ on COVID-19 and in-person meetings.
I understand your concerns about limiting foot traffic in hospitals. Under the pre-COVID-19 OPMA rules, an agency can meet in locations other than its regular meeting place. So that would be one option for the District in the future if we get to a point where in-person meetings are required under the OPMA. Another option would be for the Board to change the regular meeting location to a site other than the hospital in accordance with the requirements of RCW 42.30.070. If the District resolution or bylaw provision that establishes the schedule for regular meetings also specifies the regular meeting location, a meeting at a different location would need to be noticed as a special meeting.
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