85.20

OPINION NO. 85-20

An opinion request has been presented concerning whether a psychologist (the Employee) at Rosewood Center may be employed by a private consulting organization that provides services to providers of care funded by the Mental Retardation and Developmental Disabilities Administration (MRDDA), a unit within the Department of Health and Mental Hygiene.

The Employee is a staff psychologist at the Rosewood Center (Rosewood or the Center), a residential facility for the mentally retarded and developmentally disabled that houses approximately 1,100 mentally retarded children and adults. It is organized for administrative purposes into several units, each of which is designed to serve individuals at similar functional levels and with similar behavioral characteristics. The Employee works in a unit whose residents are adults of both sexes who are severely to mildly retarded. All are ambulatory and most have emotional/behavioral problems. Though Rosewood is a totally residential facility, clients in the Requestor's unit are likely to be the most "community ready," and likely to be discharged into a community setting or alternative living unit (ALU).

The Employee is a psychologist member of an interdisciplinary team working with Rosewood clients within his unit. He does evaluations and testing, develops behavioral treatment programs, and provides psychotherapy to some clients. As a staff psychologist, the Employee works with the team developing treatment objectives on program plans. He also evaluates the "intellectual, behavioral and adaptive functioning of the client," and provides the results to team placement meetings evaluating the readiness of the client for release from a residential facility to an alternative living arrangement.

The agency process for contracting with and regulating private providers of alternative living arrangements are discussed in detail in several prior Opinions, particularly in Opinions No. 85-10 and No. 84-3. Organizations are selected to be providers through a formal procurement process that is managed primarily through MRDDA's Regional Office. According to the current Regional Director (formerly Director of Rosewood), recent changes in agency procedures have resulted in more definitive separation of Regional functions from the activities and personnel of residential facilities. The Regional Director indicates that placement decisions as to particular clients and particular providers may involve interaction with facility social workers. They do not now rely, however, on direct participation by interdisciplinary team members, whose role is limited to treatment of the client and evaluation as to readiness for alternative living. Also, apparently all licensing activities are conducted in the agency's headquarters offices.

The outside employment being considered by the Employee is with Applied Behavioral Consultants (ABC), a private for-profit consulting business. According to its founder, ABC provides an interdisciplinary range of services to private entities engaged in the provision of alternative living arrangements to the mentally retarded and developmentally disabled. The firm markets clinical services, support management training, and testing and evaluation services in the various components of a client's individual program plan (IPP). This testing and evaluation is done in accordance with MRDDA requirements that clients funded by it be annually evaluated as to their intellectual, physical and emotional progress.

According to ABC's owner, most of its contracts at this time are with MRDDA providers, and may involve testing in one or a whole series of IPP components. The tests are administered by a technician and generally are electronically scored and evaluated by consulting staff of the company. The results are used by the provider in modifying or adjusting the IPP, and by MRDDA in considering whether and to what extent the client continues to be eligible for MRDDA support. The Employee, who is not a licensed psychologist, would serve as a technician administering the tests, and he indicates he expects to provide some behavioral program training to providers' staff members (as to factors related to providers' compliance with MRDDA requirements) as well as some intervention counseling to clients. The Employee was apparently hired when he responded to an employment advertisement in a Baltimore newspaper.

We have considered several situations involving employees of MRDDA residential facilities, and have consistently prohibited outside employment with private providers who are regulated and funded by MRDDA. (See, for example, Opinions No. 85-10, No. 84-14, No. 84-3, No. 82-40 and No. 82-41.) These determinations have been based on a conclusion that the employment was with an entity that contracted with and was regulated by the individual's agency as prohibited by §3-103(a)(1)(i) of the Public Ethics Law (Article 40A, §3-103(a)(1) (i), Annotated Code of Maryland, the Ethics Law), and that the employment relationships were not sufficiently remote to warrant application of an exception. These Opinions were generally directed at situations where the individual was directly employed by a provider, or had a solo private practice through which he provided services to a provider.

An initial question in this request is thus whether the Employee's provision of services through a separate formal entity that does not contract directly with MRDDA brings this situation within the strict employment prohibition of §3-103(a)(1)(i). In Opinions No. 84-14 and No. 80-18, we found that the provision of personal services could constitute employment with the person served, even where there is an intermediate employer (either a private practice or contractor consultant). The Employee in this situation would apparently be providing services to residents of private provider agencies substantially funded and regulated by his agency. Even though these services would be through an intervening employer who does not contract directly with MRDDA, we believe that this employment activity must be viewed (as under our prior Opinions) as an employment relationship with the provider entity that contracts with his agency.

This activity would therefore be prohibited by the bar in §3-103(a)(1)(i) against employment with an entity that contracts with one's agency, and we do not believe application of an exception would be appropriate here. The Employee's private work would involve testing that is in fulfillment of agency planning and review requirements imposed on providers. He would go to the provider's site for the test and consult with provider staff, and may provide direct intervention and counseling. We recognize that the Employee's agency duties could be viewed as remote from the providers, given the nature of the placement process. This has been true for many of our prior Opinions involving this agency. We also understand, however, that he may be involved with a provider once a client is placed, to give background information and guidance regarding the client. And more importantly, his proposed private duties would directly and significantly involve agency providers and regulatory requirements, and could very well be funded directly from agency contract funds. He has indicated, for example, that he may provide training to provider staff relating to compliance with MRDDA provider agreements.

Under all of these circumstances, we believe that this situation, for purposes of applying §3-103(a)(1)(i) and our regulatory exception criteria (published at Comar 19A.02.01), is functionally very like our prior cases involving MRDDA employees. (See, for example, our Opinion No. 85-10, which addresses this prohibition and the exception criteria in detail.) These cases generally reflect our concern for the appearance of conflict, and for the impact on agency credibility when agency funded and regulated providers use agency employees to carry out their activities. We therefore advise the Employee that his proposed employment, as described to us, would come within the prohibition of §3-103(a)(1) (i) and that, consistent with our prior view that MRDDA employees may not have outside employment providing services to agency providers, an exception may not be applied.

Thomas D. Washburne, Chairman
    Reverend John Wesley Holland
    Betty B. Nelson

Date: October 23, 1985