STATE USE LAW COMMITTEE MEETING

AUGUST19, 2014

MEETING MINUTES

MEMBERS PRESENT: Debbie Harrington, Doyle Dobbins, Michelle Mirabella, Jayson Crouch, Chuck Wagner, James “Ty” Case, Dan Madrid (Ex-Officio), Thomas Cook (Ex-Officio), Mary Page Bailey (Council to the SULC)

GUESTS: Andy Kloepfer, Paul Beane, Lloyd Schmitz, Amber Mangini (Secretary to the SULC)

Ms. Debbie Harrington called the meeting to order at 2:10pm after determining that there was a quorum.

  1. APPROVAL OF MINUTES–Ms. Harrington asked if the Commission had any changes or amendments to make to the July 15th minutes. Mr. Doyle Dobbins moved to accept the minutes as written. Michelle Mirabella seconded the motion, and the minutes were unanimously accepted as written.
  1. OLD BUSINESS
  1. By-Laws and Guidelines–Mr. Jayson Crouch stated that he would be in favor of theCommission establishing some By-Laws. He found that there are several other Commissions in Delaware that have already established By-Laws. Also,there are operating procedures that govern things that aren’t mentioned in the document we have that relates to business processes and contracts. Mr. Crouch said that these reasons should provide the support to move forward with adopting By-Laws.

Mr. Doyle Dobbins stated that the Commission should be doing everything it can to make itself more efficient and effective. He said that By-Laws, if well written, would provide a clear understanding of what is expected from the Commission.

Ms. Harrington said that after reviewing Chapters 100 & 101 of the Delaware Code, she realized that the guidelines were too general, not specific to the Commission, and they lacked information that the Commission would want written in their By-laws. Ms. Harrington also noticed that there was a lot of suggestive corrections and writing on the general guidelines document, so she was curious to know who wrote the document.

Mr. Crouch explained that the original general guidelines document was established and approved by the Commission. The document came up again later for additional revision and review, which was when the suggestive corrections were written on it.

Ms. Harrington suggested that the Commission re-write the general guidelines to include the things that we would want written in the By-Laws. Establishing By-Laws specific to the SULCwould provide a clear understanding of the expectations of the Commission.

Mr. Cook stated that the Commission should consider updatingsome of its processes as well, in regard to price adjustments. He said that recently he needed to find the process to re-evaluate pricing for a set aside location, however the price adjustment process was very unclear.

Doyle Dobbins stated that there are 3 ways to make adjustments within the state system. One way to make an adjustment would be within the budget cycle itself. Mr. Dobbins said that the cycle runs 2 years ahead so we could evaluate the contracts and suggest an increase to the agencies in advance. The second way would be through the Joint Finance Committee, because every year they can make adjustments to the budget. They start in the fall and they don’t submit their final proposals until June, so there are several months to negotiate. Lastly, Mr. Dobbins stated, most agencies have some ways within their own structure to make some adjustments.

Mr. Cook asked how the Commission could work those options into the by-laws and guidelines in a way that would be clear. He suggested as a 4th option, there could be an ongoing allocation set aside for increases reflecting the need to keep up with price increases like minimum wage for workers and cost of living which goes into providing a quality service.Mr. Cook stated that the Commission should think about which of the four options mentioned would be the best way to move forward on a regular basis.

  1. Price Adjustments –Ms. Harrington wanted to know who determines pricing and what would the process be to adjust a determined price? She referenced Title 16 where it states that “the director of DVI and a representative from DelARF shall determine, with advice from the Commission, the price of all products manufactured and services provided by DIB or a qualified rehabilitation facility”. Ms. Harrington said that her understanding of this was that Dan Madrid, a DelARF Rep, and someone from KSI would make a price determination, and then present it to the Commission for approval.

Mary Page Bailey stated that after the price recommendation has been determined for the services from DIB or another qualified rehab facility, it is then brought to the Commission to be approved. If a change is needed to the price after approval, it has to be brought back to the Commission for a new approval. If a change is made to something that was previously approved, then the approval would no longer be valid and therefore the Set-Aside wouldn’t be valid.

Mr. Cook wanted to know if his price recommendation would be accepted if he presented it to the Commission on behalf of DelARF, and they agreed with it. If it were accepted, can OMB or another state agency just turn it down and decide not to buy it?

Mary Page Bailey explained that the reason OMB and Finance representatives are on the Commission is so we are able to hear their side, which currently happens to be that they don’t have the budget for it. This is a problem that should be addressed. There could be an opportunity for better mechanisms to be put in place through the SULC’s regulations.

Michelle Mirabella stated that if the request is presented one or two years in advance, the agency would have ample time to go back through the budgeting process to request an increase to cover that change. This is why it must be done within a timely manner, and that should be addressed in the guidelines.

Mary Page Bailey suggested that this could be something that is presented as part of the original Set-aside. It could state that within a certain time-frame they are allowed an increase in price, that way it would already be in the contract from the beginning.

  1. Re-Writing Regulations and Establishing By-laws–Mr. Madrid suggested that thenext meeting should be a working meeting,so that the Commission can begin to establish the guidelines as a group.Mr. Cook agreed with the idea of a working meeting, but requested that the meeting start at 1:00pm so there will enough time to work.

Ms. Bailey stated that what we call “guidelines” are in fact regulations that need to be properly promulgated by giving them to the register of regulations where they would be posted as part of a legislative system. Then they would be posted and given opportunity for public comment. The Commission could then determine if changes need to be made, if not they would be posted as final. If changes are needed, the process would start over again.

Mr. Dobbins suggested that two small subcommittee’s work on drafting the By-laws and Guidelines documents, and then they could present them to the whole Commission for discussion. It was decided that one subcommittee would work on the regulations or “guidelines” and consist of Thomas Cook, Dean Stotler, Michelle Mirabella, Jayson Crouch, Dan Madrid, Doyle Dobbins, and advice from Mary Page Bailey. Ms. Harrington would head up the other subcommittee with Chuck Wagner, Thomas Cook, and Jayson Crouch that would be working on establishing the By-Laws for the Commission.

Mr. Wagner suggested that there should be a time frame agreed on to complete these projects. It was decided among the Commission that the goal would be to have everything completed by the November meeting. Mary Page explained that in regard to the promulgation schedule, the regulations must be submitted by the 1st of the month in order to be published by the 15th. After that, it’s open for public comment for 30 days, then finalized after another 30 day period, unless there are changes to be made to the document.

Ms. Harrington requested a Motion, and Doyle Dobbins made the Motion for the General Guidelines to be re-written and the By-laws to be established. Mr. Jayson Crouch seconded the motion, and it was unanimously approved and carried, with a target date of December 1st, 2014.

  1. Changing the Name of the Commission–The Commission unanimously agreed that the name “Commission For The Purchase of Products And Services of The Blind And Other Severely Handicapped Individuals” is very outdated and discussed changing the name.

Mary Page Bailey stated that the Commission could request a name change on the basis that the term “handicapped” is no longer appropriate. Also, the current name is too long and difficult. Ms. Harrington noticed during her research, that most of the Commissions had names that were short, simple, and reflected their purpose.

Mr. Jayson Crouch recommended the name “State Use Law Commission”. The Commission agreed that that name would be a good choice because it is recognized nationally and a lot of people are involved with it or know what it is. Mr. Beane thought the name should reflect the purpose of the Commission as well, so he suggested “The State Use Law Advancement Commission”.

Mary Page Bailey said that in order to get the name changed, the Commission must propose a complete statutory change. The Commission also would have to determine the language that will be used throughout the chapter. Ms. Bailey offered to have her admin develop a format, using the statute, to help the Commission prepare a Bill that must be taken to the Sunset Committee. Support from the Sunset Commission would help to get the Bill passed.

Ms. Harrington asked for a Motion to change the name of the Commission to “State Use Law Commission”. Mr. Chuck Wagner made the motion, Ms. Mirabella seconded, and the Commission was unanimously in favor of the name change. Motion Carried.

  1. Review of Title 16 –Mr. Jayson Crouch suggested that the Commission focus its efforts on the By-laws and the Regulations before anything else. Once those documents have been finalized, then concentrate on the areas that have already been incorporated into the questionnaire that was submitted to the Sunset Committee. Mr. Crouch also recommended that the Commission aim for another deadline such as the first of January 2015.

Mr. Dobbins stated that Mr. Crouch’s plan of action would be a good idea as long as the Commission has the proposed changes in place by then.It was then decided amongst the group that all efforts would be concentrated on establishing the by-laws and regulations until they are submitted in December, before focusing on Title 16.

  1. NEW BUSINESS
  1. Texas National Poll on State Use Programs –Ms. Harrington addressed an email correspondence between Dean Stotler and State Use Law of Texas regarding a survey for the Sunset review. She stated that should a member of the Commission respond to any matter that would be considered a responsibility of the SULC, then it would be appropriate to inform the Commission of your response.

Mr. Crouch stated that the Commission isn’t clear if Mr. Stotler responded on behalf of the Commission, or because it was directed to him as a State Procurement Officer.

The Commission would like to request an update of the situation from Mr. Stotler, along with a copy of his full response. Also, the Commission would like to know in what capacity he was asked to respond.

  1. Waiver Authority / Secure Document Destruction– Mr. Beane wanted to know who would have the authority to issue a waiver.Ms. Bailey stated that there is only one specific waiver authority within the SULC chapter. She said if an agency requested a service or product through DIB thatDIB couldn’t provide, then the Director of DIB would have the authority to grant a waiver that would allow the requesting agency to get the product or service from the general market.

Mr. Crouch stated that the service of secure document destruction was Set-aside, and the Commission voted that Service Source would provide secure document destruction to the state.

Ms. Mirabella said that there are 3 tiers of pricing that have been pre-approved; this is the price “menu”. If an agency requested a service that was available and on the “menu”, they did not have to come back to the Commission to have it added to the contract. They could simply go to the purchasing agent and the service would be started.

Ms. Bailey stated that if a request were made for something outside of that “menu”, or outside of the parameters of the Set-aside, then it would have to be brought back to the Commission to be added to the contract.

Ms. Mirabella informed the Commission about an agency that doesn’t agree with theservice price in the contract; they instead want to get a competitive bid outside of the Set-aside contract. This agencyhad a private vendor that was performing the service for 7.5 cents; however that contract was terminated due to the vendor not willing to continue the service for that price. The agency still wants the low price of 7.5 cents, but the price through the Set-aside is 17 cents so the agency wants a waiver so they can try to find a lower bid somewhere else.Ms. Mirabella also pointed out that the Set-aside was already in place when the services were procured from the private vendor for 7.5 cents; therefore the agency violated the State Use Law.

The commission discussed amongst each other possible ways to address the violation. Ms. Bailey suggested that the Commission send a letter to inform the director of the agency that they are in violation of the State Use Law and remind them of the requirements outlined in the contract.

Mr. Cook stated that he (on behalf of DelARF), and the Procurement Office have both already confronted the person responsible. He said that the woman was aware of the violation, and expressed her lack of respect for the contract as well as her intent to continue to violate the Law. Mr. Cook suggested that the Commission address the matter with her supervisor before she gets another contract put in place.

Ms. Bailey recommended that the Commission contact Rita Landgraf about the situation becausethe woman would fall under the Department of Health & Social Services (DHSS). Ms. Harrington stated that she will call Ms. Rita Landgraf; however she asked to be provided with the information (documentation, emails, etc.) that was discussed during this meetingso that she is prepared to present the facts. Ms. Harrington also requested that Mr. Beane reveal the identity of the woman and the agency she works for.

Mr. Beane stated that the woman is Dana Chant, an office manager for the Division of Social Services and the Division of Medicaid & Medical Assistance.

Ms. Bailey recommended that the Commission vote to have their Chairmanmove forward with the plan to contact Rita Landgraf. Ms. Harrington asked for a motion and the motion was so-moved by Mr. Doyle Dobbins and seconded by Mr. Jayson Crouch. It was so-moved that the Chairman of the SULC take the issue to Secretary Landgraf to address the Non-compliance demonstrated by Dana Chant. The Commission was unanimously in favor, motion passed.

  1. Advisory Subcommittee Report – Mr. Doyle Dobbinsdeveloped a document that outlines certain categories identified in the law that the Subcommittee should address. The document consisted of the following 4 bullet points; membership, policies & procedures, provider selection, and product diversity. The document reflected Mr. Dobbins view on the purpose of the subcommittee according to the law.

Mr. Dobbins spoke about a letter written by JJ Davis during a prior administrationthat supported the concept of the State Use Law. The letter was sent out over 8 years ago to all state agencies, and received very positive feedback. The Subcommittee discussed the possibility of doing the very same thing to remind the state agencies that the State Use Law does exist, and should be used proactively. The goal would be to inform and educate the agencies about the State Use Law, and provide a better understanding of its purpose.

Mr. Dobbins wanted Ms. Harrington to contactDirector Ann Vasalli with OMBto discuss the possibility of the SULC sending out a document similar to the JJ Davis letter. Ms. Harrington agreed, however she said that she would need a copy of the original JJ Davis letter to forward to Ms. Vasalli. Mr. Crouch and Ms. Mirabella stated that they have a copy of the letter and they would send it to Ms. Harrington.

Mr. Crouch made a motion that Ms. Harrington wouldask Director Vasalli to help the SULC support the law. Ms. Mirabella seconded the motion and the motion was unanimously approved.

Lastly, Mr. Dobbins stated that one goal of the subcommittee is to help find opportunities. He suggested that the Commission ask Mr. Dean Stotler if he would be willing to break down some of the larger contracts within the state, so that agencies such as DIB and DelARF could provide some of the sub-services that exist within the larger contracts. Ms. Harrington stated that the main purpose of the SULC is not only to find opportunities, but create opportunities as well. Ms. Harrington thought that the idea of breaking the larger contracts down would be a good idea, and Mr. Stotler could help determine the best approach to take.