A clinical psychiatric nurse at the Regional Institute for Children and Adolescents in Rockville (RICA or the Institute) has requested an opinion as to whether she may accept as clients in a private practice either an individual who is a former patient of hers at RICA or an individual who is the parent of a former patient.
The Requestor works at RICA as a nurse-therapist as part of a multi-disciplinary team that is supervised by a psychiatrist and also includes a social worker and psychologist. RICA is a day and residential treatment program managed cooperatively by the Department of Health and Mental Hygiene (DHMH) and the Montgomery County School System. It serves children referred through the school system as emotionally disturbed, who have an emotional handicap that interferes with their ability to achieve or otherwise function effectively in the school environment. Though patients tend to be seriously disturbed in order to be referred to RICA, the facility apparently has only a few referrals through Juvenile Services Administration or the courts. The Institute is not a locked facility and those who are dangerous to themselves or others are not generally retained. Residential students often go home on weekends and holidays.
The Institute's campus involves a school building where students have a regular academic program administered through the public school system. A clinical building is attached. Residential students live in cottages separate from the school and clinical buildings. Clinical teams are assigned to cottages and consist of a team leader who does administration and general consultation, along with other professionals such as the Requestor. Students are assigned to cottages on an arbitrary basis depending on the availability of a bed, and to a particular therapist depending on the individual's caseload. The Requestor is assigned to one of the two girls cottages and works with students in middle school through graduation from high school (ages 12--21 years). Elementary children are in the day program only and the Requestor is not involved at all with this age group.
As a nurse-therapist, the Requestor is a case manager and the primary person working with a particular student. She provides direct individual, group and family therapy, and generally coordinates all the services that the patient gets. She writes up treatment plans and, in coordination with other staff, does treatment reviews every sixty days. She may work with counselors who are involved in evening activities therapy and with school staff, as well as psychologists and social workers on the multi-disciplinary team. Case managers and teams also meet regularly to review the case, and it is the team as a whole that makes the initial determination and recommendation for discharge. The aftercare plan (required by Health-General Article, §10-809, Annotated Code of Maryland) is also a recommendation of the whole team, though the development of the plan is the initial responsibility of the primary therapist. The aftercare plan may include a recommendation and referral sources for outpatient therapy. Again, the basic work on outpatient referrals would be done by the Requestor, though the final recommendation would be from the team.
The issue in this request is raised by the Requestor's private practice and inquiries that she has received from the families of two former RICA students. The Requestor has recently begun a small private practice in collaboration with another RICA therapist. They are renting space from another person and their collaboration to this point relates primarily to sharing expenses. They each see and handle their own clients though they may cover for each other in emergencies. They may in the future hold group sessions together, and are considering becoming part of the private psychological association in order to share expenses and advertising. They currently get clients from pediatricians and family practitioners. They receive no referrals from State agencies and receive no public funding either as a grantee or a provider of care.
The first issue raised by the Requestor involves a former student who has been released and is currently in a public high school. The aftercare plan for the individual included referrals for outpatient care, but the student's parent wanted her to continue with the Requestor as a private client. The other situation involves the father of a former student who is himself seeking to be the Requestor's client. She indicates that in this case she was involved in a family counseling program with the entire family. The family also continued in a multi-family group at RICA for about two months after the discharge, though apparently family problems continue. The student's father is still not seeing anyone, and would like to continue to see the Requestor.
The Medical Director of RICA indicates that this type of request from students and their families is not uncommon. He states that very often over a several year period, good therapeutic relationships develop between students and therapists, and sometimes it would be nice if these relationships were not disrupted. The Director says, however, that, based on his interpretation of the Public Ethics Law, therapists, students and families have been advised, without exception, that this is not permissible. The request was pursued in this case partly to clarify application of the Law and partly to satisfy the concerns of these particular parents.
This request raises outside employment, interest and prestige issues similar to those present in many private practice situations, and subject to §§3-103(a) and 3-104 of the Public Ethics Law (Article 40A, §§3-103(a) and 3-104, Annotated Code of Maryland, the Ethics Law). The Requestor would, under our approach to private practices and sole proprietorships, have both an employment and interest relationship with the practice.1 As it is presently operating, however, there would appear to be no contractual or authority relationships that would bring it within the strict §3-103(a)(1)(i) prohibition against affiliation with an entity that is under the authority of or contracts with one's agency, and we so advise her. (She should, of course, be aware of and keep this provision in mind if she and her colleague affiliate with a private association. See Opinion No. 83-7 for discussion of a similar situation.) Nor, in our view, would the current practice present the kind of clear and serious concerns intended to be addressed in the Law's more general inconsistent employment provision (§3-103(a)(1)(ii)).
We have considered many situations involving sole proprietorships and private practices, however, and when we have approved a situation, it has been with the consistent advice that the practice could not involve referrals from the individual's agency or acceptance of clients who have been in any way affiliated with the agency, either directly as clients or through family members. This has been the approach whether or not the strict provisions of §3-103(a)(1)(i) applied, and has been based on the potential application of: the §3-101 disqualification provision, and possible official involvement in referrals or discharge recommendations; §3-104's bar against improper use of prestige, and possible concerns about the potential for actual or apparent abuse of official position by individual employees who refer clients to their colleagues or their own practices; the §3-107 bar against use of confidential agency information, and the possible use of agency information in marketing services or acquiring clients; and the §3-103(a)(1)(ii) inconsistent employment provision, given the potential impact on carrying out of official duties if referral to agency colleagues were an alternative.
The prior Opinions have involved prospective general advice as to future or expanded practices where the activity was allowed with an understanding that certain situations would be avoided. This request sets forth two particular situations, and the question for us is whether there is anything in the circumstances set forth here to warrant a different approach. In our view, the facility's original approach to this situation reflected a correct application of the principles of the Ethics Law, and is consistent with the position we have taken in other private practice situations. We believe, in fact, that the circumstances presented here are the types of situations which, however well-meaning the individuals, raise the potential for concern under §3-103(a) and the other provisions of the Law. We therefore advise the Requestor that her inclusion of these two clients in her private practice would give rise to an employment and interest relationship by her in the practice that would be prohibited by the Ethics Law.
We also advise the Director of our general policy regarding private practices, as discussed above, and recommend that he, and possibly DHMH managers generally, develop a written policy generally setting forth these guidelines. While we recognize that application of the Law may depend upon the facts of a particular situation, we believe that written policies can be instructive. In circumstances such as this, for example, where the facts clearly fit within the prohibition, a written, possibly agency-wide policy, may avoid unnecessary problems for both the agency and its clients.
Herbert J. Belgrad, Chairman
Reverend John Wesley Holland
Betty B. Nelson
Barbara M. Steckel
Thomas D. Washburne
Date: January 29, 1985
1 See, for example, our Opinions No. 84-30, No. 84-22, No. 83-28, No. 83-5, and No. 82-52.