Number 17 April 8, 1981

Number 17 April 8, 1981 The Honorable Robert Q. Crane Treasurer and Receiver General State House - Room 227 Boston, MA 02133 Dear Mr. Crane: In your capacity as Chairman of the State Lottery Commission, you have requested my opinion concerning the operation of the state arts lottery. Specifically, you ask whether revenues received from the sale of arts lottery tickets are to be deposited directly into the State Arts Lottery Fund or whether they are first to be deposited into the State Lottery Fund and transferred to the State Arts Lottery Fund only after payments have been made to holders of winning tickets and to the State Lottery Commission for its expenses in operating the arts lottery. In addition, you ask how you are to administer two appropriations by the legislature for expenses in the operation and administra- tion of the arts lottery and for payment of arts lottery prizes. For the reasons set forth below, 1 am of the opinion that revenues from the sale of state arts lottery tickets are to be deposited first into the State Lotter>' Fund from which payment of prizes and the costs of operatmg the arts lottery are to be made. Thereafter, the remaining balances are to be transferred into the State Arts Lottery Fund. I also conclude that both appropriations to which you refer must be deposited into the State Lottery Fund and. it there are unexpended balances when the term of each appropnation expires, those monies are to revert to the general fund. ^ . , i Your first question concerns the composition of the State Ails Lottery and the appropriate handling of revenues as well as expenses ot the arts lotte^_ The answer to that question requires an interpretation of the ac which IstabltsheTthe state ans lottery, St. 1979, c. 790 (^chapter 90 cann. look at that statute in isolation, but must instead examine the overall statutory cheml m orTer to ensure that statute is read so as to constitute a harmonious '^Z.Re,.trar of Motor VeMclesj. Board o^^^^^^^^^^^ Motor VeHule I.iahilin Policies and Bonds, Mass. Adv. Sh. (1981 ) 4l.'i. 4.U. cCter 790 amended G.L. e. 10, §24, by adding a s.x.h paragraph wh.h '"°"m Commission is hereby authorized and *rec.ed ,o conduc^a lonerv for the arts which shall be known as he ^\''"^'> 7'; a^Ttottm shall be conducted weekly and tickets shall be sold at Tt^inlum prke of five dollars per ttcket. Subject to the prov.s.ons of""ron thtay-five A, the arts lottery shall be conduced and the 148 P.D. 12 revenues therefrom distributed in accordance with the general provisions of the state lottery law. Chapter 790 also added a new section 35A to General Laws, chapter 10. Section 35A establishes "a separate fund to be known as the State Lottery Fund. Said fund shall consist of all revenues received from the sale of arts lottery tickets less prizes and expenses and all other monies credited or transferred thereto from any other fund or source pursuant to law." That section goes on to provide for the creation of an Arts Lottery Council, consisting of five unpaid members appointed by the Governor; for the creation of local or regional arts councils, consisting of five unpaid members appointed by the executive body of the city or town; and for a mechanism to approve grants of arts lottery funds to local and regional arts councils. Reading together these two sections, it is clear from their plain meaning that the State Lottery Commission is to conduct the arts lottery and must do so in accordance with the state lottery law.' It is equally clear that the purpose of the State Arts Lottery Fund is to provide monies to local and regional arts councils for those uses approved by the Arts Lottery Council and, in addition, to pay for the limited administrative costs incurred by the Arts Lottery Council in connection with that distribution." General Laws chapter 10, section 35A, plainly states that the State Arts Lottery Fund shall consist of all revenues from ticket sales less prizes and expenses, plus all other monies from any other fund or source. This language is distinguishable from that of G.L. c. 10, §35, establishing the general State Lottery Fund and providing: "Said fund shall consist of all revenues received from the sale of lottery tickets or shares, and all other monies credited or transferred thereto from any other fund or source pursuant to law." Because these two provisions are contained within the overall state lottery statute, see Registrar of Motor Vehicles v. Board of Appeal on Motor Vehicle Liability Policies and Bonds, supra, Mass. Adv. Sh. (1981) at 420, and because the Legislature must be presumed to have been aware of existing statutes when enacting St. 1979, c. 790, see id. at 424, I must conclude that this distinction is intentional. Thus, it is my opinion that revenues derived from the sale of arts lottery tickets are to be deposited in the State Lottery Fund. From that Fund, the Commission must make payments to prize-winning ticket holders, as well as expend amounts attributable to the costs associated with conducting the arts lottery game. The remaining balance shall then be maintained as a separate State Arts Lottery Fund, the primary purpose of which is to assist local arts ^While General Laws, chapter 10, section 35A, is silent as to the manner in which the arts lottery is to be conducted, it does provide for a manner of distribution of arts lottery revenues somewhat different from that of the general state lottery. Arts lottery funds are to be distributed to those cities and towns whose arts councils have filed applications for uses approved by the Arts Lottery Council, which "shall then certify to the Comptroller the payment of the cost thereof to the extent that funds therefor are payable under section twenty-four to such city, town, or region". G.L. c. 10, §35A. See 1980/81 Op. Atly. Gen. No. 4, Rep. A.G., Pub. Doc. No. 12 at (1980). ^G.L. c. 10, §35A, provides in pertinent part: . . . The arts lottery council, local and regional arts councils may establish their own administrative units, but no arts council shall utilize more than five per cent of the monies received from the State Arts Lottery Fund for administrative purposes, in the case of the arts lottery council not more than three per cent of the monies of the total State Arts Lottery Fund for administrative purposes. P.D. 12 ,4,^ councils. I note that this conclusion is consistent with the directive of G.L. c. 10, §24, that the State Lottery Commission shall conduct the arts lottery in accordance with the general provisions of the state lottery law. This manner of administration will also ensure that the State Arts Lottery Fund will consist solely of monies which are in fact available for distribution to local and regional arts councils and for the administrative expenses of the Arts Lotter>' Council. Your second question concerns two legislative appropriations. The first of these is contained in the general appropriation bill for fiscal year 1981 and is in the amount of $759,500., "[flor the expenses of the operation and administration of the arts lottery". St. 1980, c. 329 §2, item 0640-0100. The second is contained in a supplementary budget for fiscal year 1980 and is in the amount of $1,000,000., "[f]or the payment of prizes by the state lottery commission in accordance with the provisions of chapter seven hundred and ninety of the acts of nineteen hundred and seventy-nine; provided, that a sum equal to said payments shall be reimbursed by said commission from the revenues received under the provisions of said chapter seven hundred and ninety". St. 1980, c. 354, §2, item 0640-0200. You ask whether it is proper to make payments for expenses and prizes based on these appropriations through the State Lottery Fund and, if that answer is in the affirmative, whether the balances remaining after such payments are to be transferred to the State Arts Lottery Fund. For the following reasons, I answer the former question in the affirmative, but conclude that any unexpended balances from these appropriations may not be transferred to the State Arts Lottery Fund for distribution to local arts councils and for payment of administrative expenses of the Arts Lottery Council and must instead ultimately revert to the general fund. The introductory sections of both appropriation acts in which these items are contained provide that the appropriations are made "subject to the provisions of law regulating the disbursement of public funds . . . ."St. 1980, c. 329, §1, and St. 1980, c. 354, §1. General Laws chapter 29, section 12. provides as follows: Appropriations by the general court, unless specifically designated as special, shall be for the ordinary maintenance of the several departments, offices, commissions and institutions of the common- wealth and shall be made for the fiscal year unless otherwise specifically provided therein. See also G.L. c. 29, §13. General Laws chapter 29, section 14. governs "[alppropriations for other than ordinary maintenance" and provides in pertinent part that such appropriations: unless otherwise specifically provided therein, shall be available for expenditure in the two fiscal years following June thirtieth of the calendar year in which the appropriation is made and any portion of such appropriation representing encumbrances outstanding on the records of the comptroller's bureau at the close of such second fiscal year may be applied to the payment thereol any time thereafter. The unencumberd balance ot such appropriation shall revert to the commonwealth at the close ot such second, or other designated, fiscal year .... 150 P.D. 12 Thus, whether the appropriations are for ordinary maintenance or some other purpose, unencumbered balances from these funds will ultimately revert to the Commonwealth. St. 1980, c. 329, §2, item 0640-0100, is by its terms specifically earmarked for the expenses of the operation and administration of the arts lottery. Since the clear legislative intent of chapter 790 is that the State Lottery Commission is to operate and administer the arts lottery,^ I must conclude that this appropriation is intended to be for the use of the Commission. Therefore, for the reasons set forth above, the appropriation is to be deposited into the State Lottery Fund. Furthermore, because the "provisions of law regulating the disbursement of public funds" so require and because the appropriation does not otherwise specifically provide, the unencumbered balance of this appropri- ation, after payments for the expenses of operation and administration of the arts lottery, will revert to the general fund. Similarly, and for the same reasons, the appropriation contained in St. 1980, c. 354, §2, item 0640-0200, is specifically earmarked for the payments of arts lottery prizes by the State Lottery Commission and is, therefore, to be deposited into the State Lottery Fund. The unencumbered balance of that appropriation, after payments of arts lottery prizes, will also ultimately revert to the general fund. Furthermore, that appropriation requires the State Lottery Commission to reimburse the general fund from revenues received from the arts lottery game in an amount equal to the payments made for prizes. Thus, if the revenues from the sale of arts lottery tickets at least equal the costs of prizes, this $1 million appropriation will be returned in full to the general fund. This result is consistent with the manifest purpose of this appropriation item, that is, to assist in implementing the arts lottery in its initial operations. See St. 1980, c. 354, §1. See also St. 1980, c. 329, §2, item 0640-0100. In reaching this conclusion, I am guided not only by the plain language of these appropriation items, Hoffman v. Howmedica, Inc., 373 Mass. 32, 37 (1977), but also by the language of G.L. c. 10, §35A, defining the State Arts Lottery Fund. Nowhere in these appropriations is it indicated that the unexpended balances are to be "credited or transferred" to the State Arts Lottery Fund. See G.L. c. 10, §35A. Thus, in the absence of express legislative authority to the contrary, these appropriations must be made in accordance with the statutes governing the disbursement of public funds. See Baker v. Commonwealth, 312 Mass. 490, 492 (1942); St. 1980, c. 329, §1; St. 1980, c. 354, §1. I conclude, therefore, that, unlike the State Lottery Fund, the State Arts Lottery Fund consists of an amount equal to revenues less prizes and expenses, plus all other monies credited or transferred from other sources. Revenues from the sale of arts lottery tickets are to be first deposited in the State Lottery Fund, from which payments for prizes and the costs of administration and operation ^The administration of the arts lottery by the State Lottery Commission is to be distinguished from the administrative duties of the Arts Lottery Council, see 1980/81 Op. Atty. Gen. No. 4. Rep. A.G., Pub. Doc. No. 12 al (1981), the expenses for which are expressly limited to "three percent of the monies of the total State Arts Lottery Fund". G.L. c. 10, §35A. Because it is clear that (he Council is not involved in the operation of the arts lottery and because the administrative expenses of the Council are thus specifically limited, I am unable to conclude that this appropriation is available for the expenses of the Council See Baker v. Commonwealth. 312 Mass. 490, 492 (1942). P.D. 12 ,5, are to be made. Those appropriations for the operation and administration of the arts lottery and for arts lottery prizes are also to be deposited into the State Lottery Fund. In the absence of specific statutory authority, any unexpended balances from these appropriations are not to be transferred to the State Arts Lottery Fund, but must ultimately revert to the general fund, as required by law. Very truly yours. FRANCIS X. BELLOTTl Attorney General Number 18 May 5. 14X1 Romulus DiNicola, Executive Secretary Board of Registration in Pharmacy 100 Cambridge Street - 15th Floor Boston, MA 02202 Dear Dr. DiNicola: You have requested my opinion on a question relating to that portion of G.L. c. 112, §39A, which permits a "restricted pharmacy," as defined by that section, to accept and fill prescriptions by mail, "provided, however, that the prescribing physician is verified, according to procedures estabhshed by the board [of registration in pharmacy], as licensed to practice in the common- wealth or in any New England state". General Laws chapter 94C. section 18 (c), permits physicians who are licensed to practice medicine in a state contiguous to Masschusetts and who are registered with the Commissioner of Public Health to issue prescriptions for controlled substances. You ask whether this latter statute limits the authority of restricted pharmacies to accept and fill prescriptions by mail. For the reasons stated below, it is my opinion that chapter 94C does limit the practice of filling prescriptions by mail and that restricted pharmacies may accept and fill by mail prescriptions issued only by those physicians registered with the Commissioner of Public Health in accordance withG.L. c. 94C, §18(c). , ^ ^ Authority to regulate the dispensing of prescription drugs m the Common- wealth is divided under a comprehensive statutory plan between the Commis- sioner and the Board of Registration in Pharmacy. See generally G.L. C. 94L. G L c 112 §§30-42A ' As part of the Commissioner's authority in this area. General Laws chapter 94C, section 18 (c), provides for the registration of certain out-of-state physicians who may issue prescriptions within the Common- wealth, as follows: A prescription for a controlled substance may also be issued by any physician who is licensed or registered in a contiguous state and By virtue of G .L. C. 94C, §3, all prcscnp.ion drugs are by defmUion conlrollcd substances. 2-n,e authon.y of both the Commissioner and the Board " *i^ ^^ - ;|[--,^ ^ '^f,^, Z1 Substances Act. Chapter 940 g.yes the C":]^"^,?;;^^ b ^>T^o^or busmess ope,.. dispensation and possession of =^' ^°"'™ '^f„^"^f,"h " ed wTlh rcgXng Uie opcrauon o, and pharmacists. The Board, on the other hand, '>> char|e<l w.in rcgu g ,,.,^,o, 28, 30 and Oie professional activities of registered pharmacists. G.L. C. 94C, S84 /, 1 1 152 P.D. 12 who resides or practices in said state provided that such physician is registered with the commissioner subject to such rules and regulations as he may estabhsh. Such registration shall be valid only for the purpose of authorizing the filling of prescriptions within the commonwealth and shall not authorize such physician to possess, administer or dispense controlled substances as provided in section nine, or to practice medicine within the commonwealth. Any prescription issued under this paragraph shall be issued in the manner prescribed in section twenty-two and all relevant provisions of this chapter shall apply to such physician and prescription. Notwithstanding this provision. General Laws chapter 112, section 39A,^ authorizes the Board to "verify" those out-of-state physicians whose prescrip- tions a restricted pharmacy may fill by mail. That section provides in pertinent part: Nothing in this section shall prohibit a restricted pharmacy from accepting and filling prescriptions by mail; provided, however, that the prescribing physician is verified according to procedures established by the board, as licensed to practice in the commonwealth or in any New England state. These two provisions of law appear to differ in two respects. First, General Laws chapter 94C, section 18 (c), authorizes non-resident physicians to issue prescriptions for controlled substances to be filled in Massachusetts only if the prescribing physician is licensed to practice in a state contiguous to Massa- chusetts. General Laws chapter 112, section 39A, appears to authorize restricted pharmacies to accept and fill by mail prescriptions issued by physicians licensed to practice in any New England state. ^ Second, while General Laws chapter 94C, section 18 (c), requires that a non-resident prescribing physician must be registered with the Commissioner, General Laws chapter 112, section 39A, imposes no such prerequisite, but instead requires verification by the Board that the prescribing physician is licensed to practice in Massachusetts or in any New England state. For the following reasons, I am of the opinion that General Laws chapter 112, section 39A, does not impliedly repeal the requirements set forth in General Laws chapter 94C, section 18 (c), and that only those physicians practicing in states contiguous to Massachusetts who are duly registered with the Commissioner of Public Health may issue prescriptions for controlled substances to be filled in the Commonwealth. In arriving at that conclusion, I am mindful that I must not view these two statutes in isolation, but must construe them together so as to constitute a harmonious whole consistent with the legislative purpose. Registrar of Motor Vehicles v. Board of Appeal on Motor Vehicle Liablity Policies and Bonds, Mass. Adv. Sh. (1981) 415, 420. Moreover, I am guided by the principle that ^General Laws chapter 112, section 39A. was added by St. 1980, c. 135, and provides for the registration by the Board of Registration in Pharmacy of a "restricted pharmacy" to furnish pharmaceutical services only to residents of the Commonwealth or of any New England state who are beneficiaries of a "trust, fund, pension plan, combination plan or profitsharing plan," established in accordance with General Laws, chapter 151D. •ah New England states except Maine are contiguous to Massachusetts, while New York is contiguous, but is not numbered among those six New England states. P.D. 12 153 Statutes alleged to be inconsistent with each other must be so construed as to give reasonable effect to both unless there be some positive repugnance between them. Everett v. Revere, 344 Masss. 585, 589 (1962). quoting from Fiichhur^ V. Leominster Street Railway, 200 Mass. 8, 17 (1908). Accord Hacilev v. Amherst, 'ill Mass. 46, 51 (1975); Goldsmith v. Reliance Insurance Companv. 353 Mass. 99, 102 (1967). When no irreconcilable conflict exists, 1 must invoke a long-standing preference to reach a solution which brings the statutes into correlation and gives effect to both. Parker Affiliated Cos., Inc. v. Department of Revenue, Mass. Adv. Sh. (1981) 77, 83; Count}- Commissioners of Middlesex County v. Superior Court, 371 Mass. 456, 460 (1976); Board of Education v. Assessor of Worcester, 368 Mass. 51 1, 513-514 (1975). The statutes at issue here are not so antagonistic as to preclude reasonable interaction'. Both measures were enacted to serve very distinct and largels independent purposes. Their interrelation occurs on a very narrow ground and need not frustrate the primary objectives of either provision. Among its many important directives, General Laws chapter 94C provides that physicians and certain other health care professionals who. in the course of their professional practice, possess, dispense, or prescribe controlled substances, must register with the Commissioner and must fulfill the require- ments of that chapter and of regulations issued by the Commissioner. G.L. c. 94C, §§6, 7, 9, 15-24. At the time of its enactment, chapter 94C prohibited physicians not licensed to practice in Massachusetts from prescribing controlled substances. The Legislature, however, recognized the hardship such a blanket provision created for Massachusetts residents who regularly receive medical care from non-Massachusetts physicians conducting a practice in areas close to the Massachusetts border. See Mass. H. 3231 and 3232 (1976). Chapter 498 of the Acts of 1976 added paragraph (c) to section 18 and thus permitted physicians licensed to practice in contiguous states and registered with the Commissioner to issue prescriptions for controlled substances. Massachusetts residents who consulted such physicians could receive necessarv' pharmaceutical services in Massachusetts.^ General Laws chapter 112, section 39A, was added to St. 1980, c. 135. the purpose of which was to authorize the Board to register pharmacies operated by health, welfare or retirement plans established under G.L. c. 151D. Such pharmacies are thus able to furnish pharmaceutical services to plan beneficia- ries Recognizing that such restricted pharmacies may not be easily accessible to beneficiaries, sponsors of the measure included a provision authori/ing restricted pharmacies to accept and fill by mail prescriptions issm-d by physicians licensed to practice in the Commonwealth or in any New hngland state". An examination of the original bill makes apparent the ;^P«";>;^[J intention to ease the difficulty confronted by ^enef.c.aries ot a chapter 15iD plan who regularly receive professional medical services Irom phvsic.an Tacticmg m'other'New England states ^^-^fl^^;^:'^''^''^^ services from a plan pharmacy. See Mass. S. 512 (1980). Mass. H. .41. sTiiTliii^n, when onginally i"-|"-t-?„*™„ed'^^^^^^^^^^ H. 5105(1976). 154 P.D. 12 (1980). In enacting G.L. c. 112, §39A, the Legislature exercised its judgment that such authority is necessary to facilitate the utilization of restricted pharmacies by the plan beneficiaries. Despite their inconsistencies, 1 find that these two statutes are fully reconcilable. Because of its narrow application to restricted pharmacies. General Laws chapter 112, section 39A, does not operate to negate the requirements of G.L. c. 94C, §18 (c). Those requirements must be satisfied by non-Massachusetts physicians who desire to issue prescriptions to be filled in Massachusetts. "The mere existence of one regulatory statute does not affect the applicability of a broader, nonconflicting statute, particularly when both statutes provide for concurrent coverage of their common subject matter." Dodd V. Commercial Union Ins. Co., 373 Mass. 72, 78 (1977). Enforcement of both the general requirements of G.L. C. 94C, 18 (c), as well as the more narrowly circumscribed requirements of G.L. C. 112, 39A, can be fulfilled without interfering with the accomplishment of the other. Moreover, nothing contained in either statute serves to frustrate implementation of the other. Both statutes can be readily harmonized to fulfill the legislative plan for regulating the distribution of prescription drugs. Finally, I am unable to conclude that General Laws chapter 1 12, section 39A, was intended to repeal by implication those portions of G.L. c. 94C, §18 (c), which are not fully consistent with its provisions. A statute does not operate to "repeal or supersede a prior statute in whole or in part in the absence of express words to that effect or of clear implication". Commonwealth v. Hayes, 372 Mass. 505, 512 (1977), quoting from Cohen v. Price, 213 Mass. 303, 309 (1930). While repeal by implication is disfavored, Kardas v. Board of Selectmen of Dedham, Mass. App. Adv. Sh. (1979) 1596, 1600, the test of the applicability of the principle of replied repeal is "whether the prior statute is so repugnant to and inconsistent with the later enactment covering the subject that both cannot stand". Registrar of Motor Vehicles v. Board of Appeal on Motor Vehicles Liability Policies and Bonds, supra, Mass. Adv. Sh. (1981) at 421. After reviewing the interaction of both statutes, it is my opinion that they are not so repugnant to and inconsistent with each other that they cannot be reconciled. On the contrary, each enactment is capable of a construction which will give maximum effect to both measures. This reconciliation permits restricted pharmacies to accept and fill by mail prescriptions received from physicians verified according to procedures established by the Board, to be licensed to practice in Vermont, New Hampshire, Rhode Island or Connecticut and registered with the Commissioner pursuant to G.L. c. 94C, §18 (c). It also permits physicians licensed in any of those states or in New York to write prescriptions for their patients which may be filled in person at other non-plan pharmacies in the Commonwealth. Very truly yours, FRANCIS X. BELLOTTI Attorney General P.D. 12 155