86.01

OPINION NO. 86-1

An opinion has been requested as to whether a Home Care Aide (the Employee) in a local Department of Social Services may also be a private adult foster care provider with her agency.

The Employee works as a homemaker aide in the Adult Services Division of the Montgomery County Department of Social Services (MCDSS), which is a local unit of the Department of Human Resources (DHR). The home care service program is established in Article 88A, 84—87, Annotated Code of Maryland, and implemented in COMAR 07.02.15. The basic thrust of this program is to assist elderly and chronically ill individuals to function in an independent living situation, free from abuse or neglect, by providing in-home and other supportive and professional services. The Adult and Family Services supervisor in the Department indicates that the home care aides are used in just about any way necessary to help keep a person at home. The aides may do light chores, assist in budgeting and nutrition planning, provide transportation, and in general, do everything except heavy chores and provision of medical services.

The Adult Foster Care Program functions pursuant to the Family Law Article, Title 14, Annotated Code of Maryland, which establishes a program for adult protective services. This program's purpose is to provide protective services for "disabled persons and other adults who because of physical or mental disabilities require assistance in providing for their daily needs." The program is subject to State regulations, but is offered in a particular locality at the option of the local department. Foster care homes become available by application of a potential provider to the local Department. A home study is done by the Home and Community Resources unit, also within the Adult Services Division, evaluating the whole range of the provider's life and home situation. Once a home is certified, referrals may be made to it by the Home and Community Resources unit. Counsel for the DHR indicates that "although there is no formal contract...there is a care plan for each adult in care that is transmitted to the provider."

Departmental regulations define the requirements for foster homes and the significant responsibilities of the parties in this situation. Continuing responsibility for Departmental interaction with the provider and the client is handled by a caseworker assigned by the Adult Services Division. The agency funds the foster home provider based on a determination of the level of care required and the total amount of funds necessary. The MCDSS funds the difference between the total amount and what the individual client client contributes from other sources (such as Social Security). Payments are made automatically by the agency's fiscal office based on authorization documents provided by the caseworker.

The Employee has been certified as an adult foster care provider since 1981, based on a review by the local ethics commission.1 She has had clients with varying mobility and needs and indicates that they may stay for about a year. She states that she provides a home, guidance and other general assistance that is consistent with her full-time employment situation. Individuals may leave because they become more independent or because they need more care than she can provide. She states that she works with caseworkers in her foster care provider capacity, who are the decision-makers regarding the client's status. She may have input regarding the day-to-day situation, but the care plan is developed and monitored by the caseworker working in the adult protective services program. She states that she has occasionally worked with a caseworker who also has home care clients subject to her official responsibility. She has never had agency homemaker services for one of her foster care clients.

Agency officials indicate that the use of homemaker aides in the foster care program is unlikely but not impossible. Apparently homemaker services are available as a part of several agency programs. For administrative purposes, the MCDSS has organized all of its homemaker aides into a single unit that serves all the programs, rather than attaching aides to particular program units. The Chief of the Adult Services Division indicates that use of homemaker services by an adult foster care provider is thus possible, but very unlikely. She indicates that part of the foster care provider review and certification is consideration of the ability to provide homemaker type services. Only on rare occasions, such as where transportation is needed, would a homemaker aide serve a foster care client.

The Division Chief indicates, however, and this is confirmed by counsel, that caseworkers within the Division follow a particular client and foster care and homemaker services are part of a continuum of services that may be offered at different times to a particular individual. It is thus possible that: 1) a homemaker client could become a foster care client (or vice versa), and 2) a particular caseworker could be interacting with the Employee as to a foster care client and also as to a home care client. According to the Chief, the agency does not believe that this presents an operational conflict. The Department has been able to assure that the Employee has no home care assignments relating to her foster care work. The Division Chief does not believe this would be a problem even if other agency staff were to do this. She indicates that responsible foster care homes are very difficult to find and that the Employee is a good provider.

We have generally said, in both medical and social work situations, that provision of services as a private provider in State-funded programs results in a private proprietorship business with which the individual would have both an employment and interest relationship.2 As a private provider, the Employee would therefore potentially be covered by the employment and interest prohibitions of §3-103(a) of the Public Ethics Law (Article 40A, §3-103(a), Annotated Code of Maryland, the Ethics Law). These involve: 1) a bar against an employee's being employed by or having a financial interest in an entity that contracts with or is under the authority of his agency (subsection (a)(1)(i)), and 2) a bar against any other employment that would impair the individual's impartiality or independence of judgment (subsection (a)(1)(ii)).

Though this program does not involve a written provider agreement, there would appear to be an unwritten understanding that must be viewed as contractual for purposes of the Ethics Law. Certainly, the providers are being reimbursed by the agency in return for performing certain services in fulfillment of the agency's statutory obligation to the client. Also, of course, providers are subject to the very significant regulatory requirements established by the agency for this program, both in the initial home study process and in continuing monitoring and interaction with the caseworker. The Employee's foster care provider activities would thus result in an employment and interest relationship that would be within the prohibition of §3-1-3(a)(1)(i), unless an exception can be applied.

Exception in this situation would be allowable pursuant to regulations issued by the Commission (at COMAR 19A.02.01 and 19A.02.02) in implementation of language in §3-103(a)(1) that its prohibitions apply "except as permitted by regulation of the Commission where the interest is disclosed or where there is not a conflict of interest or the appearance of conflict." The regulations establish guideline criteria directed toward evaluation of whether the private interest or employment is sufficiently remote from the agency activity that a conflict of interest or appearance thereof is unlikely. The criteria are not technical provisions, but generally deal with the nature of the employee's agency duties and relationships, as well as the way in which the private activities interface with the agency. If all of these regulatory standards of remoteness are met, the employment would be allowable, despite the existence of authority or contractual links between an individual's State and private employers. In addition to disclosure of the interest, the criteria include findings that:

A) The State duties do not significantly impact on the outside employer or a contract between the outside employer and the agency.

B) The employee is not directly supervised by a person whose duties significantly impact on the outside employer or a contract between the outside employer and the agency.

C) The employee does not supervise a person whose duties significantly impact on the outside employer or a contract between the outside employer and the agency.

D) The employee is not affiliated with the specific unit in the agency that exercises authority over or contracts with the outside employer.

E) The employee has complied with other relevant sections of the Ethics Law.

F) The outside employment involves no non-ministerial duties significantly relating to the agency's authority over the employer.

G) The employee's private duties do not involve negotiating or carrying out a contract between the agency and the outside employer (except for broad fixed reimbursement contracts).

H) As to employment, the private compensation is not directly funded by the State contract.

I) As to interests, the value of the contractual relationships does not exceed a certain dollar amount or percentage of capital investment.

J) The specific employment circumstances do not otherwise create a conflict of interest or the appearance of a conflict.

In applying these criteria to this situation, we note that the Employee appears not to have any official duties relating to the foster care program. However, issues could be presented under some of the criteria, given the internal agency relationships between the two programs, the fact that the Employee would be accountable to her agency as a private provider, and the fact that she would be directly reimbursed by agency funds. The regulations, however, may allow an exception where the criteria would otherwise apply to bar exception, where the agency certifies that the activity would not impair the agency credibility.

There is also a provision in the regulations dealing with ministerial employees. The regulations define this type of employee as one "who has limited duties that are defined with such precision as to time, mode and occasion as to leave no substantive exercise of discretion and judgment by the employee." (See §3-103(a)(2)(ii) of the Law, and COMAR 19A.02.01.01C and 19A.02.02.01C.) Pursuant to this "ministerial employee" provision, exception can be allowed even where the employee is the responsible person under the private contract, and is directly reimbursed under the contract, where the "head of the agency involved specifies that he believes the service or product to be supplied by the employee would be otherwise unavailable to the State and that there would be no conflict of interest or appearance of conflict that would impair the credibility of the agency, and this view is concurred in by the Commission." This exception is designed to take account of agency needs, where the individual employee's duties are purely ministerial and do not involve discretionary activities that could impact on their agency's dealings with them in a private capacity.

Given the current circumstances of this situation, we believe that the exception regulations can apply to allow the Employee to continue her foster care work for the agency. The Employee's duties appear to fit within the regulations' definition of "ministerial employee," and the agency indicates that providers of adult foster care are very difficult to find, especially those that can be trusted and relied upon by the agency. Also, local agency officials have generally expressed a view that this relationship works and has not presented any problems with the program. They are prepared to continue to take whatever steps are necessary to ensure that the Employee is not involved in a conflict situation. Also, the agency's Deputy Secretary has assured the Commission that:

1) the Employee's duties are ministerial and do not involve initial assessment or assignment of cases or development of case plans,

2) there is a waiting list of individuals for adult foster care, and that of authorized placements, only about 80 percent have been filled, and

3) this practice is not expected to be an extensive one that would significantly impact on agency operations.

The Deputy Secretary has also indicated that in this situation there would be no conflict of interest or appearance of conflict that would impair the credibility of the agency.

Under all of these circumstances, we advise the Employee and the agency that an exception may be allowed to permit the Employee to be a foster care provider. This decision is based on the description of the Employee's duties and the agency program as provided to us, and the agency's assurances that it will continue to take great care that the Employee not be involved as an employee in any activities that would impact on her private contract with the agency. We also assume that the Employee would not ever have dealings, either as a private provider or agency home care aide, with any individual with whom she has worked in her other capacity.

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

Date: January 22, 1986

——————

1 In Montgomery County some employees supported in part by local funds have in the past been covered by the local ethics law. It should be noted, however, that DSS employees are part of a State agency and subject to the State Ethics Law. They cannot also be subject to the dual jurisdiction of the local commission.

2 See Opinions No. 84-12 and No. 84-9.