Tom Brewer, M.D., Director Arkansas Kidney Disease Commission 5326 W. Markham, Suite 9 Little Rock, AR 72205
Dear Dr. Brewer:
This is in response to your request for an opinion regarding the removal of funds from the budget of the Arkansas Kidney Disease Commission ("Commission") by the Department of Human Services, Rehabilitation Services Division. You state that you were informed that $74,240.04 would be removed from your budget for wages and other expenses due to a federal audit. You have questioned this action in light of the requirement that funds made available to the Commission be used to provide monetary assistance in defraying costs incurred by patients suffering from chronic renal disease. You have also cited to an Attorney General opinion that addressed the use of these funds to defray the cost of medical care, wherein in was concluded that there was no authority for such proposed use of the funds. See Op. Att'y Gen.88-093.
Although I have not been provided with all of the facts in this regard, it is my understanding that following an audit, federal funds that had formerly been made available to the Division of Rehabilitation Services ("Division") for salaries related to the chronic renal disease program were no longer going to be provided. An allocation decision was, as a result, made by the Division Director whereby funds that would otherwise have been made available to the Commission were applied to salaries and other expenses of the employees who administer the program. This action was, in my opinion, within the authority of the Division Director, and ultimately the Director of the Department of Human Services ("Department").
The funds in question are distributed from general revenues under the Revenue Stabilization Law (A.C.A. § 19-5-101 et seq.). Specifically, they comprise part of the Rehabilitation Services Fund Account within the Department of Human Services Fund. A.C.A. § 19-5-404 (Cum. Supp. 1991). There is, therefore, one fund in this instance; that is, there is no separate fund established for the Commission. The monies that are made available to the Commission to provide monetary assistance under A.C.A. §§20-15-601—605 (Repl. 1992) (establishing the Commission and setting forth its powers and duties) come from the Rehabilitation Services Fund Account. It is my opinion that the allocation decision that was made in this instance is authorized under A.C.A. § 25-10-111, wherein it states in relevant part under subsection (c) that:
[T]he General Assembly determines that the Director of the Department of Human Services, with respect to the allocation of funds and the exercise of fiscal restraint over all divisions, offices, sections, units, programs, services, and institutions within the Department of Human Services, shall have the ultimate authority to allocate and limit the amount of funds to be expended in the operation of each division, office, program, service, and institution within the Department of Human Services as he deems necessary to comply with the fiscal laws of this state.
It is my understanding that the allocation in this instance did not involve a transfer of positions or line-item appropriations.1 Compliance with A.C.A. § 25-10-112 (Repl. 1992), which requires a transfer request, was therefore not necessary.2
In conclusion, therefore, it is my opinion that this allocation decision was within the authority of the Department. Once allocated to the Commission, of course, the monies must be used for the purposes set out in A.C.A. §§ 20-15-601—605. See also Op. Att'y Gen. 88-093. There was, however, in my opinion, no misuse of funds in this instance by virtue of the decision to allocate fewer funds to the Commission than in the prior year due to the salary needs.
The foregoing opinion, which I hereby approve, was prepared by Deputy Attorney General Elisabeth A. Walker.
Sincerely,
WINSTON BRYANT Attorney General
EAW:cyh
1 The transfer of a line-item appropriation would be necessary if, for instance, a line item in the Division's current appropriation (Act 1083 of 1991), such as "regular salaries," would have been exceeded as a result of the allocation.
2 Section 25-10-112 requires the Chief Fiscal Officer's approval of a request for a transfer of "positions, appropriations, line-item appropriations, and funds" within or between divisions of the Department. A.C.A. 25-10-112(a). Because there was, apparently, no transfer of positions, appropriations, or line-item appropriations in this instance, this provision was not applicable. It should be noted in this regard that there was, similarly, no transfer of "funds" for purposes of § 25-10-112 because there is only one fund in this instance, i.e., the Rehabilitation Services Fund.