An addiction counselor in a local county health department has requested an opinion as to whether he may have outside employment counseling private clients through the office of a local physician. Having evaluated the facts presented by this particular requestor, and taken account of the advice and views of the Department of Health and Mental Hygiene (DHMH) regarding the general practices of their local addiction counselors, we advise that this activity would be allowable only in the limited circumstances where the counselor's private clients do not involve any Health Department referrals or Driving While Intoxicated (DWI) matters.
Basically, this request involves an individual who is an addictions counselor in a County Health Department, and who also does private alcohol counseling in affiliation with a physician in private practice in the County. The Requestor's Health Department counseling is part of a substantial DHMH program operated out of and funded substantially by the Addictions Services Administration (formerly the Alcohol Control Administration). Apparently a significant number of the alcohol treatment referrals come from the court system as the result of Driving While Intoxicated or "DWI" cases. The precise character of the referral for treatment depends upon the particular court and judge. A judicial referral decision could be impacted by private counseling, however, since in some instances a defendant may, with or through his attorney, undertake a treatment program prior to trial and conviction, and this process is presented to the court in connection with the defendant's case and sentencing.
If an existing treatment program is not part of the case, or if a judge does not accept an existing program, then referral would be made to the local health department. Also, as part of the sentencing process, offenders in most counties are evaluated by local health department assessment counselors located at the court. The result of the process is that a significant percentage of individuals are referred to the local health department for a 26-week problem drinker program. This treatment is provided by alcohol counselors such as the Requestor, some in satellite offices such as the one where the Requestor works. Some local agencies make referrals to private providers. (This in fact is encouraged by the Department, though in the past the Requestor's local department has not relied to any extent on private referrals.)
The Requestor is an Addictions Counselor IV assigned as a supervisor of a field office of his county health department. His responsibilities include conducting alcohol education classes, group counseling and being responsible for the operation of the field office. He estimates that about 95 percent of the referrals he receives are from the local district court and are individuals that have been referred to the Department as part of probation or suspended sentence in a DWI proceeding. Apparently the balance of the office's clients are either self referrals or persons referred to the clinic by their employer or attorney. At the present time the Requestor's Health Department caseload includes 51 persons in the education program, 37 persons in 3 group counseling sessions; 36 in an Alcoholic Anonymous monitoring program; and one in individual counseling. In the past the Requestor has been assigned to do DWI assessments at the court house, but apparently he no longer has court-related duties.
The Requestor indicates that he is certified as an alcoholism counselor by the Maryland Alcoholism Counselor Certification Board (a private entity that examines and certifies alcoholism counselors) and has looked for an opportunity for private work and individual counseling to keep up his professional skills. He is affiliated with a private physician and has solicited clients through use of a local bar association mailing list, and his contacts with a private attorney in the area. The Requestor indicates that he has an understanding with the Doctor that no clients will be referred by him in his Health Department capacity to the Doctor's office for care.
The Requestor advises that he currently works in the Doctor's office from 4:30 to 7:30 p. m. on Wednesdays. He does one group counseling session per week and the rest of the time involves assessments and evaluations. Though some of his clients are patients referred through family or employer referrals, in some cases the individual has a pending traffic or court charge. The Requestor writes a progress letter to the individual's attorney which will be used in court disposition of the matter. He indicates, however, that he has himself never been required to appear in court. Apparently most of the practice's DWI referrals come from the same law firm in the County.
According to the Requestor clients are billed and appointments made through the Doctor's office. Private clients that are involved in court cases have generally been referred back to him for treatment and counseling as part of the disposition of the DWI case. Some clients, however, may be referred by the court to the Health Department, and it is thus possible that clients seen by him privately could ultimately become his Health Department clients. This has apparently happened a few times in the past, and the individuals expressed some concern about the duplication of evaluation and other processes by the same individual in two capacities. There is no direct referral connection between the Doctor's office and the Department, as this particular county has not in the past made private referrals. The Doctor is, however, one of four physicians in the county that writes Antabuse prescriptions, and his name is therefore on the list of physicians to whom individuals who need this drug are referred by the local Department.
Alcohol treatment programs are required to be certified pursuant to the Health-General Article, § 8-411, Annotated Code of Maryland, and according to regulatory review criteria set forth in COMAR 10.47.01. The certification process applies to all alcohol abuse facilities, defined as "any facility that provides treatment, care, and rehabilitation for individuals who show the affects of alcohol abuse or alcoholism," and including State owned or operated facilities. According to the agency, any private counselor that receives clients through a private source (not a doctor), and who provides counseling services, must be certified, even if the services are totally private.
Though the statute specifically excepts programs that are part of the office of a physician who is treating patients within the scope of the physician's practice, the Department advises that "a formal program operated by that physician which utilizes non-physicians as primary practitioners would require departmental certification." Thus the Requestor's counseling service would have to be certified even though he is affiliated with a private physician. He seems to provide covered services, and it would appear that most of the practice's alcohol counseling clients come to the office for his services.
The certification process involves submission of an application with a protocol of the program that the individual proposes to operate, and including a description of treatment policies and procedures and a demonstration of their compliance with state, local and federal laws and regulations relating to health, zoning, welfare and safety. The certification office in the Alcohol Services Administration in the DHMH headquarters office does a pre-certification review, including a site visit, and evaluates the program against all of the substantive and procedural requirements of the regulations. A temporary certificate is granted, followed by a general certificate after six months and further site review and evaluation. General certificates are monitored and evaluated on a continuing basic and must be reviewed and renewed annually. The certification unit may suspend, deny or revoke a certification.
This request presents issues under the outside employment provisions of the Public Ethics Law (Article 40A, Annotated Code of Maryland, the Ethics Law). Section 3-103(a)(1)(i) of the Law bars an employment relationship with an entity that contracts with or is under the authority of one's agency. We have in the past considered several private practice situations, generally advising that private practices are entities in which individuals have employment and interest relationships for purposes of this section, but that they are not per se prohibited. Private practices have been allowed in a variety of professional situations, based primarily on the fact that there were no regulatory or contractual relationships that would bring a situation within the strict prohibition, and also assuming that there would be no referrals or other private dealings in any way connected with the person's agency or clients from the agency.
This situation is different from those, to the extent that the Requestor's counseling services are viewed by DHMH as requiring certification, and the activity would be within the § 3-103(a)(1)(i) prohibition, unless an exception can be applied. The exception language of § 3-103(a)(1) provides that the prohibition applies unless the employment would not present a conflict of interest or appearance of conflict. This provision was added to the Ethics Law in 1981 partly based on the recommendation of the Commission that flexibility be added to the absolute prohibitions in § 3-103(a). Its purpose is to avoid situations where a violation would result from purely technical application of the elements of § 3-103(a), even where there is no conflict or appearance of conflict between the private interest or employment and the official's agency or duties.
In developing exception criteria implementing the employment portion of this provision (COMAR 19A.02.01) we sought to define the circumstances where the relationship between an employee's official duties or his agency and the private employment is so remote that the possibility of a conflict of interest or the appearance of conflict is unlikely. The criteria include findings relating to an employee's dealings with his private employer in the context of his State duties, as well as consideration of how his private activities relate to his agency program or his own duties. They also include a review of the specific employment circumstances to ensure that they do not otherwise create a conflict of interest or appearance of conflict.
In evaluating this request, we note that the Requestor would, as the primary alcohol counselor in the practice, have significant non-ministerial responsibility for complying with the agency's regulatory and certification requirements. Moreover, we are concerned about issues arising from the fact that the State's DWI enforcement program is a sensitive public process that over a period of time tends to involve many of the same defendants, lawyers, counselors and judges. The private and public roles here may be difficult to keep separate as to people involved in the process.
In addition, the Department has advised that it is concerned about its counselors who do private counseling, either when they receive referrals from their own county department or from neighboring departments. The Secretary has advised, in response to our request for the agency's views, that the situation presented here "poses if not an actual conflict, at least the appearance of a conflict of interest." The Department is concerned that many of the private opportunities arise as a direct result of the individual's Health Department employment, and that the possibility of cross referrals between and among counties results in an actual or potential conflict between counselors in adjacent counties that is sufficient to prohibit acceptance of referrals from DHMH local offices. The Department concluded:
In summary, we believe that any counselor's secondary employment, be it in the same county or adjoining counties, should be limited to private referrals. Referrals from any Local Health Department provides both the potential and perception of a conflict of interest.
Under all of these circumstances, we are unable to conclude that a private counseling practice that involves clients referred from a local department or otherwise involved in the DWI process would be sufficiently remote for an exception to be allowable. We therefore advise the Requestor and the Department that the Ethics Law would apply to prohibit private alcohol counseling practices by the Health Department's local addictions counselors, except to the extent that the practice accepts only private clients that are not referred by any local health department or otherwise involved with DWI cases.
M. Peter Moser, Chairman
William J. Evans
Reverend John Wesley Holland
Betty B. Nelson
Barbara M. Steckel
Date: September 23, 1987