88.04

OPINION NO. 88-4

An opinion request has been presented by a community health nurse who performs evaluation services in a local health department regarding whether she can work as a private case management provider in another county. Applying the outside employment exception regulations (COMAR 19A.02.01) under §3-103(a)(1) of the Public Ethics Law (Article 40A, §3-103(a)(1), Annotated Code of Maryland, the Ethics Law), and taking into account the views of the individual's Department, the Commission determines that an exception applies to allow this activity.

This request is presented by a nurse who is a permanent part-time (80%) employee in the Anne Arundel County Health Department. She is a Community Health Nurse II and works in the Geriatric Evaluation Services (GES) program. This program is part of a statewide effort directed at evaluating individuals who are elderly and who, because of disability or illness, are at risk of needing long term care in an institutional setting. The purpose of the program is to evaluate their needs and the availability of community services so that they can remain in the least restrictive environment consistent with their needs.

According to the GES Coordinator in the Preventive Medicine Administration, there is at least one GES evaluator in every local health department, more than that in the larger jurisdictions. The local GES personnel are responsible for evaluating individuals that may be referred from a variety of sources, including family members, physicians, hospitals or other providers. The evaluation team includes a nurse, a social worker and sometimes a physician. Each individual performs a review of the case, either together or separately, and they together develop a joint plan of care. They then make a recommendation that would either involve working directly with the patient for implementation or referring the case to a case manager.

The GES teams in the local health departments perform evaluations under the Statewide Evaluation and Planning Services (STEPS) program. This is a program that functions as a pre-admission screening mechanism for elderly individuals who are candidates for nursing homes or other long term care and who are or would within six months become medical assistance clients. The Gateway II program is another aspect of the health services program to the elderly for which the GES team performs evaluations. Gateway II is a federal program that provides gap-filling funds to individuals who, with personal care in the community, could remain in their homes and avoid nursing home or other long term care. The result of an evaluation in any case is a recommended plan that describes the needs of the patient to acquire services in the home. These services may include personal care services, defined by health department regulations to include "assistance with those functions and activities normally associated with body hygiene, nutrition, elimination, rest, and ambulation which enables a recipient to be treated by his physician on an outpatient rather than an inpatient or institutional basis."

The Department of Health and Mental Hygiene (DHMH) regulations establish requirements for participation in the program as medical assistance providers by personal care providers, personal care provider agencies, and case management providers. They also include recipient conditions for participation. Case management providers can be within the local health department, a public, private or nonprofit agency, a physician provider, or a registered nurse approved for participation by the DHMH. They must have prior experience in providing services to the chronically ill or disabled, and must have provider agreements with the Department, and they must provide certain clinical and management services. The case management certification process is done by the Medical Assistance Policy Administration. Under the regulations case managers are reimbursed at the rate of $40 per month per case.

Prior to her employment with the State, the Requestor, who is a certified case management provider, had been employed by a home health agency in Queen Anne's County. When that entity closed, she retained four cases for which she provides the case management services. She says that she advised the agency when she was hired that she had these relationships. Her supervisor advises that the agency was aware of this activity, and concluded that it would not present a problem, based in part on the fact that she would be part-time. The Requestor is currently the only private case management provider in Queen Anne's County and is concerned that these clients would not be eligible for services if there were no case manager available. She wants to continue with these clients and has also received requests to provide similar services to other clients. These individuals are all medical assistance clients funded through that program rather than directly through a grant program such as Gateway II.

The Requestor's work in the Anne Arundel County GES program involves doing assessments with the social worker under both the Gateway and STEPS programs, and developing plans for individuals who are Anne Arundel County residents. (There is apparently no crossing of County lines in the provision of these services.) Most of her evaluations are done in the clients' homes or the hospital, and all of her cases are assigned in a team staffing conference. According to her supervisor, she also works an additional day per month and provides case management services to Anne Arundel County clients. She is one of three certified case managers in this county health department.

As is indicated above, the Requestor's immediate supervisors were aware of her private activity at the time that she was employed, and concluded that it would not be a problem. She has one day per week that she does not work for the Department, and, based on the estimated full-time case-manager caseload of 50, would have time for a private caseload of up to ten. She would also be available during that one day to do the private monitoring required by the regulations. According to her supervisor, it was agreed and understood that she would not do any of the private work or accept any calls regarding it during her regular work time in Anne Arundel County. Apparently there has not been any problem in adhering to this during the time she has worked for the Department.

This request involves application of the outside employment and interest provisions of §3-103(a)(1)(i) of the Ethics Law, and particularly the implementation of our outside employment exception regulations. This section prohibits employees from being employed by or having an interest in an entity that contracts with or is regulated by their agency. We have in prior Opinions considered situations involving providers under the health department and human resources programs and have consistently concluded that individual providers have private entities with which they have both employment and interest relationships as contemplated by this section. We have also concluded that the provider agreements (including those under the medical assistance programs) are contracts with the agency for purposes of this provision, and that the substantive regulatory requirements that providers must meet in connection with these kinds of programs result in authority relationships for purposes of this provision. (See Opinions No. 84-9 and No. 84-14.)

Consistent with these prior Opinions we conclude that the Requestor's private work would come within the prohibition of this section, and the activity would be barred unless an exception could be allowed. The exception provision and the Commission's regulations implementing it were designed to allow certain kinds of activities that would technically come under the prohibition, but where the relationship between the private activities and the public duties and agency program are so remote that a conflict or appearance of conflict is unlikely. The regulatory criteria include consideration of the individual's duties and those of her supervisor and her agency unit, and whether they would have any impact on the private activity. Also considered are the nature of the individual's private work and relationships and whether they involve direct compliance with agency requirements or receipt of agency funds. If agency funds are received, consideration is given to whether these are based on fixed reimbursement schedules or if there is individual negotiation as to fees.

We have considered application of the exception provisions in this situation, and believe that an exception would be allowable. The Requestor works for the State in a county different from her private work. She provides operational services in her State job and does not appear to be involved in the kinds of policy decisions that would impact on her private activities. Nor does she appear to be involved in administration of the medical assistance program under which she is funded in her private work. We note, on the other hand, that the Requestor is one of the few persons in the Health Department doing this kind of work and would be expected to interact to some extent with others involved in other jurisdictions, and that basically, she is privately doing in a different county the same case management type of work that she does in her State employment.

We have, however, requested and received the views of the agency regarding this situation and whether it presents a conflict of interest or appearance of conflict that would impair the credibility of the agency's mission. The Secretary of the Department has advised of her view that an exception can be allowed in this situation. She advises that the local health department in Queen Anne's County does not operate its own certified home health agency or participate in the Medical Assistance Home Care Program, and that there is "a serious shortage of providers in Queen Anne's County. In fact, at this time, *the Requestor* is the only enrolled Medical Assistance Home Care Program case management provider who works with Program recipients living in Queen Anne's County." The Secretary thus has recommended that the Requestor be permitted to pursue this work in Queen Anne's County "provided she confines herself to her present caseload and does not seek to expand her work in this area". Further, the Secretary indicates that the Requestor does not work at a level in her State job where policies are established and contracts awarded.

Under all of these circumstances, it is our view that the relationship between the Requestor's private work and her official activities is sufficiently remote that an exception should be allowed to permit the activity. We advise, however, that this is based on the Requestor's assurance that she does not intend to expand her private caseload significantly, and also assumes that no conflict problems develop in her State job. The Requestor should also take care not to be involved in her private work with persons with whom she works on any regular or significant basis in her duties with the State. The Requestor should be careful to conduct no private work on State time and also to make sure that her State position is not used in any way to benefit her private activities.

M. Peter Moser, Chairman
   William J. Evans
   Betty B. Nelson
   Barbara M. Steckel

Date: February 22, 1988