84.12

OPINION NO. 84-12

An opinion request has been presented concerning whether In-Home Aides with the Department of Human Resources (DHR) may have individual provider contracts with their local departments to provide in-home services to clients.

This request was presented by an Assistant Attorney General in DHR, on behalf of a Program Manager of the agency's In-Home Aide Service program. The request involves a proposal apparently initiated in a local department to allow In-Home Aides who are State employees to work as private providers performing chore and personal care services for local department clients during evenings and weekends. In-Home Aides are classified employees at Grades 3 through 7 (salaries ranging from $8,343 to $13,607). The position descriptions for all of these positions list various duties, including, for example, instructing individuals in daily living; advising them of help available through professional or social services; providing direct care to individuals; interpreting programs and services to persons; and gathering and reporting simple information.

The two higher level supervisory Aide positions (whose incumbents would also be potentially involved) include additional responsibilities of guiding and planning the work of co-workers, and reporting complex information. The position description further indicates that the employee "may be responsible for tending to the health and well-being of persons, for advising persons about help available from the government, for guiding persons to seek professional help, or for a combination of things." The employee is described as "the human link between the person who needs help and existing professional and/or social services."

These in-home services are provided by local Departments of Social Services generally under the authority of the Community Home Care program established in Article 88A, §84-87, Annotated Code of Maryland. The goal of the program is to provide a comprehensive range of community services to elderly persons to enable them to remain in their homes or in other independent living arrangements. Services under the Community Home Care Program are provided generally to persons meeting both age (65 years) and income requirements. Except for persons who are in the Adult Protective Services program, fees may be assessed in accordance with rates established in the regulations. The DHR is authorized to conduct research and training programs, to use grant funds from federal, State and private sources, and may "contract, where feasible and desirable, with public agencies, nonprofit private organizations, and volunteer groups for the provision of community home care services and group nutritional dining services...." The Community Home Care Program apparently currently includes purchase of services from private vendor agencies.

The services are initiated by personal interviews with a social worker in the client's home. A nursing evaluation may be made and a determination is required that the services are necessary to achieve greater self-sufficiency or retain the individual's capacity to maintain his independence. A service plan is developed in coordination with the local health department and consistent with DHR regulatory criteria (at COMAR 07.02.15.09) regarding the extent of the service provided. The DHR regulations require redetermination of eligibility every 6 months, and services may be terminated for a variety of reasons, including a change in conditions, client withdrawal, or lack of continued eligibility. The In-Home Aides participate in this process though their actual decision authority is extremely limited. The Aide may transmit information regarding the client or suggest the need for a reassessment (there is an Aide Report Form for this), but all determinations are made by a social worker.

The particular issue presented here arises from a program that would, using federal grant funds, expand the home care effort to include provision of services by individual providers pursuant to provider agreements between the individual and the local department. The Program Manager indicates that the program will be implemented by local departments in accordance with guidelines developed by the central office. She thinks that the primary focus will be on expanding the number of clients served, though in some cases service to a particular client may be increased, where existing services are less than what is required because of staff inadequacies. As the program is planned, a social worker will make a determination as to whether and what type of services are required, and will decide whether the services would be provided by agency staff, a private vendor/agency, or an individual provider. Apparently the less rigorous services, such as transportation and shopping, would be assigned to individual providers, and clients requiring more complex services or those more in need of protection would be served solely by regular agency personnel. Use of individual providers to provide personal care services has been considered but determinations as to this have not been made.

Providers' agreements would then be executed providing for payment for services on an hourly basis. The agreements make it clear that the provider is "self-employed," and is entitled to no State benefits. Initial rates have been established by DHR's Social Services Administration, based on an average of the rates paid for comparable services by private vendors. The current chore and transportation rate is $3.70 per hour, as compared to a $4 per hour base rate for Aides in the State merit system. (Note that most State employees are paid more than this, as they are in the upper grades of the classification for these positions). Individual providers under the program are to be drawn from lists of eligible individual providers that the local departments are expected to establish. The lists are to include persons applying for work at the Department, as well as persons identified through the Office on Aging, and newspaper and other advertising notices.

Some local departments would also like to include current Aides. In part, the program is designed to expand the number of clients served (there is a waiting list of approximately 250 Statewide), and Aides also working as private providers could be assigned to clients not served within their regular duties. However, there is also a suggestion that Aides be assigned to provide required weekend or evening services to their regular clients, in the interest of continuity of care. Aides do not generally work on non-regular hours, as the agency does not have over-time funds, and employees apparently cannot be required to include week-ends and evenings as part of their regular work week.

This request raises issues under §3-103(a) of the Public Ethics Law (Article 40A, §3-103(a), Annotated Code of Maryland, the Ethics Law), and in particular, our outside employment exception regulations issued pursuant to §3-103(a).1 The prohibition in §3-103(a)(1)(i) bars any employee of the State from being employed by an entity that is under the authority of or contracts with their agency. We have consistently held that private consulting or professional services operations, through which an individual provides personal services, are entities in which the individual has both an employment and economic interest. See, for example, Opinions No. 84-9, No. 83-20, and No. 83-3.2 We therefore believe that the individual provider Aides would be affiliated with an entity as set forth in §3-103(a)(1)(i).

Moreover, we believe that the relationship between an employee/provider entity and his agency would be a contractual one. Though the service relationship is with a third-party client, the transaction is based on an agreement by the provider to carry out services in return for payment by DHR (through a local Department). In our view this agreement, however it is characterized by DHR, is a contract for purposes of the Ethics Law. This approach is consistent with our earlier determinations involving medical practitioners, where we concluded that the provider agreements between medical assistance practitioners and the Department of Health and Mental Hygiene result in contractual relationships for purposes of §3-103(a)(1)(i). Opinions No. 84-9 and No. 82-46. Employee/providers would therefore have an employment relationship that would be prohibited by §3-103(a)(1)(i), unless the exceptions authorized by the introductory language to the section can be applied.

This introductory language provides that the prohibition applies "except as permitted by regulations of the Commission where such interest is disclosed or where such employment does not create a conflict of interest or appearance of conflict. ..." Our regulations implementing this exception are set forth in COMAR 19A.02.01. The approach of the regulations is to establish guideposts for determining whether the relationships between an employee's agency's functions and his private affiliations are so remote that a conflict or appearance of conflict is unlikely. The regulations deal, for example, with whether the employee's duties significantly impact on the private entity, whether he is in the unit of his agency or has supervisory relationships with individuals that impact on the private entity, whether he has private management responsibilities relating to the private entity's compliance with agency regulations, and whether his private compensation is directly funded by agency contract. The regulations also provide for Commission determination that the general circumstances of the situation do not raise a potential conflict of interest or appearance of conflict.

This situation presents several issues under these regulatory criteria. The Aides, though they do not make final evaluations and determinations, are specifically described as "the human link between the person who needs help and existing professional and/or social services." They could thus be in a position to impact agency decisions and actions regarding clients. Issues could especially be raised if Aides were serving as private providers to individuals who are their official clients. Moreover, as the sole provider under a contract, the Aide would be the person substantively responsible for compliance with agency requirements, and payments under the provider agreement would constitute compensation directly from his State agency. We are concerned under these circumstances about the strong potential for appearance of conflict, and the possibility for public concern that individual aides would be able to enhance their own ability to acquire provider contracts (that would otherwise go to private vendors) by virtue of their State position.

We are therefore unable to conclude in this situation that the relationships between private and official duties are sufficiently remote to justify application of the exception. We therefore advise the agency that provision of provider contracts to In-Home Aides would result in a violation of §3-103(a)(1)(i) that cannot be overcome by our exception regulations.

Herbert J. Belgrad, Chairman
    Reverend John Wesley Holland
    Betty B. Nelson
    Barbara M. Steckel
    Thomas D. Washburne

Date: May 1, 1984

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1 Since discussion of employment issues completely disposes of this request, and it is unclear whether the anticipated income would bring the situation within the "financial interest" prohibition in §3-103(a)(1)(i), we have not addressed the financial interest language, or considered our financial interest exception regulations.

2 Except as otherwise expressly cited to the Maryland Register, Opinion citations are to Commission Opinions published at COMAR Title 19A.