86.10

OPINION NO. 86-10

An opinion has been requested as to whether an admitting officer at Springfield State Hospital may be a Project HOME provider. The request was presented by a housing specialist in the Department of Human Resources' (DHR) Project HOME Office. It was originally raised in a local Department of Social Services which is processing a home provider application from an employee at Springfield (the Employee).

Project HOME is a program run by DHR and local Departments of Social Services pursuant to a provision in §10-806 of the Health-General Article, Annotated Code of Maryland, that the "Social Services Administration shall provide needed case management services and shall make arrangements for housing suitable to the needs" of individuals released from State residential mental health facilities. Section 10-809 requires the development of an aftercare plan. The program is implemented by local departments pursuant to regulations issued by the Department of Human Resources (COMAR 07.02.20). It represents a coordinative effort between the Department of Health and Mental Hygiene (DHMH) and DHR to provide a continuum of mental health and social services to mental health clients living in the community.

Though some of the program's clients come directly from the community, the majority are individuals being released from State hospitals. This release is based on a determination made by the hospital's interdisciplinary treatment team that the patient is able to function in a less restrictive environment than the residential facility. As there are significantly fewer beds in the community than there are potential clients, a waiting list is established. Acceptance of a person into the program is based on application of a point system evaluation as set forth in the DHR regulations. This assessment is made by a case manager in the local DSS who screens potential clients from both hospital waiting lists and the community. The case manager matches a client with a care provider, works with the client while he is still in the hospital facility, and develops and implements the required aftercare plan.

Care providers are selected as a result of their own application to the local DSS, which does a certification home study consistent with the substantial criteria set forth in the DHR regulations. The criteria include having financial resources to operate the home, a willingness to work with DSS staff in carrying out the client's program, ability to meet the resident's physical and social needs, and significant and detailed requirements regarding the residence itself. Except for residential programs run by non-profit corporations, most of the beds (about 80 percent) are in the care provider's own home or in another residence nearby. There are usually 2-3 in each home.

Payment for the care is made by the client to the provider. Individuals accepted into the program may have their own resources (such as federal Social Security payments). To the extent that these resources are not enough, their home care is subsidized by DHR funds available through a program of public assistance to adults. These funds are paid to the resident, and, except for a possible start-up payment of $500, there is no contractual payment relationship between the DSS and the care provider. There is a provider agreement between the provider and DSS, however, in which the provider undertakes not to accept any more funds than the upper limit provided for each client, and agrees to reimburse any payment where a client leaves a home because of provider action. Providers are also, of course, subject to continuing monitoring for compliance with the provider qualification regulations.

This is a program for providing housing and social services to individuals who are mentally ill but who are able to function in the community. It is therefore managed entirely by the DHR and local Departments of Social Services, and the case managers are all based at and supervised by the local department. The program is funded with social services funds, DHR defines the regulations, and the DSS caseworker does all the homestudy and monitoring work. The caseworker makes the determination as to which particular provider will be selected. The aftercare plan may include continued medical care or mental health counseling, in addition to an educational, vocational or psychosocial program. These may be funded in whole or in part by DHMH, and may involve a private provider entity or the local mental health agency.

The Project HOME provider is expected to maintain communication with these other providers. However, the home provider's official interaction is with the DSS caseworker. Also, it is the DSS case manager who is ultimately responsible to monitor the aftercare plan and see that the client follows through with all aspects of the plan. As a practical matter, however, the client's following through on the plan is up to the client. Persons discharged in this process are individuals who, clinically, at the time of their discharge do not meet the criteria for involuntary commitment. Unless the diagnosis is wrong or the situation changes, readmission to the DHMH facility, if independent living does not work out, would be based on the client's application and not on any authority retained by the hospital over the patient.

The Employee works in the Department of Health and Mental Hygiene as an admissions officer at Springfield State Hospital. This is a residential facility licensed to house 1,650 patients, and admits mentally ill patients from Baltimore City and from Carroll, Frederick, Garrett, Howard and Montgomery Counties. The Employee is a Direct Care Aide IV, paid at a flat rate of $11,450 yearly, and has been employed at Springfield for 25 years. She is a high school graduate with no college or post-secondary technical training, and has previously worked on the wards as a member of a patient care team. The Employee's current position, which she has filled since 1983, is on the 4 P.M. to midnight shift at the Hospital's Hitchman building. Her duties are described as administrative, and involve processing the paperwork to admit patients brought to the facility. (Some of these people could be individuals who have been served by Project HOME.) Though the Hitchman Building services primarily patients from Baltimore City, during the evening hours it is the central admissions facility.

Apparently, the Employee's duties at Springfield involve very little contact with the patients. After the paperwork is completed, the patient is seen and evaluated by the admitting psychiatrist. This evaluation results in a determination regarding if and where the patient will be admitted to the facility, and the patient is immediately transferred to his assigned location in the hospital. According to both the Employee and her supervisor, she does not see the patient at all after this; she has no involvement with patient treatment or any of the substantive or procedural aspects of the discharge process. The Employee indicates that she is aware that patients leave the hospital for homes in the community and believes that with her experience working with the mentally ill she could be a home care provider. She says that her application does not otherwise relate in any way to the DHMH job. The local DSS suggested presentation of the issue to the Ethics Commission, since the Employee works at a facility that is a major feeder of clients to the Project HOME Program.

The issue presented in this request is whether the Employee's activities as a care provider would be an inconsistent employment relationship as contemplated by §3-103(a)(1)(ii) of the Public Ethics Law (Article 40A, §3-103(a)(1)(ii), Annotated Code of Maryland, the Ethics Law).1 The provision is a general employment bar, prohibiting any employment that would impair the individual's impartiality or independence of judgment. Though this has been viewed as an "inconsistent" employment provision, designed to deal in part with appearance concerns, we have generally looked at an employee's actual and described agency duties to determine whether they would impact on or be impacted by his private activities. Given that Springfield is the primary feeder hospital to the Howard County Project HOME program, it is possible that clients assigned to the Employee will be former residents of Springfield, and possibly could ultimately return to the facility. These clients, however, are apparently fully and unconditionally released from the hospital. They would not be expected to have any dealings with the hospital while they are Project HOME clients, and the Employee's total responsibility as a provider would be directly to the client and the local DSS.

Moreover, we do not believe that the Employee's primarily ministerial contact with persons who could be past or future private clients is a relationship intended to be addressed by §3-103(a)(1)(ii). We have in several Opinions considered the proposed private activities of DHMH residential hospital personnel. These situations, however, have involved employees who were health care professionals involved in an interdisciplinary treatment team. The Employee here does not appear to have any involvement in the treatment or evaluation of patients or to deal in any way with the patients, expect for the brief time when they are being processed for admission. In our view the circumstances presented here do not disclose the type of relationship between private and official activities that would give rise to a conflict of interest or appearance of conflict, or where her private activity would be expected to impact on how she carries out her State duties. We therefore advise the Employee and the DHR that her service as a provider in this program would not, under the circumstances as they now exist, be inconsistent with the employment provisions of the Ethics Law.

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

Date: June 9, 1986

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1 The Employee works for DHMH and would be dealing with DHR in her provider activities. Although DHMH does have some cooperative involvement in the Project HOME program, the Employee's job does not specifically relate to this program. She therefore need not be viewed as "affiliated with" DHR for purposes of the strict prohibition of §3-103(a)(1)(i), which bars employment with an entity that contracts with or is regulated by one's agency. Since her employment is with DHMH, and her regulatory contractual relationship as a care provider would be with DHR, we find there is no basis for application of the strict prohibition of §3-101(a)(1)(i).