88.16

OPINION NO. 88-16

The Ethics Commission has been asked to provide advice as to whether a psychiatric nurse at the Walter P. Carter Center, part of the Department of Health and Mental Hygiene (DHMH), may be a personal care case manager under the agency's medical assistance program. Based on our view of the application of the Public Ethics Law (Article 40A, Annotated Code of Maryland, the Ethics Law) to this situation as well as the position taken by the agency, we advise that this activity would not be allowable.

This request is presented by a DHMH nurse at the Walter P. Carter Center, in followup of Commission Opinion No. 88-4, which also involved a DHMH nurse who wanted to serve as a case manager. The Walter P. Carter Center (the Center) is a mental health facility operating as part of DHMH's Mental Hygiene Administration. In addition to a short term acute care program in downtown Baltimore, the Center has a continuous care program in Catonsville, which is where the Employee works. This continuous care treatment facility provides care to up to 30 adult chronic psychiatric patients. Even though the care needed is longer term than that provided at the Baltimore facility, this is not considered to be permanent residential treatment. The average stay is about 18 months. Patients may be released to families, adult foster care, a group home or other domiciliary care such as Project Home.

The Employee works as a Nurse III (Psychiatric) and as such functions as a team leader. She works with the core nursing staff, provides group and individual services to the patients and does administrative work, including duties such as running charge and doing work schedules. She administers medications and evaluates as to the need for certain medication, does treatment assessments, and works with activity therapists. The Employee also functions as a part of the interdisciplinary team that is the basic method of treatment in facilities such as the Center, and as a team leader and participant in this process, is involved in evaluating a patient's progress and making recommendations regarding the patient's suitability for release.

This request results from the Employee's interest in serving as a personal care case manager under the medical assistance program. This program is a part of DHMH's effort (as part of the federally-sponsored health and welfare program) to provide for personal and health care in a patient's home that would allow a patient to be at home rather than in the more expensive institutionalized setting. A more complete description of this program and how it works appears in our Opinion No. 88-4. Basically, however, it envisions direct provision of a variety of medical and personal care services by individual providers under the supervision of case managers. Both the direct care providers and the case managers are certified by the Medical Assistance Policy Administration (MAPA), and provide their services under established fee schedules pursuant to medical assistance provider agreements with the agency.

The medical assistance program is a means for meeting the needs of persons at specified lower income levels who have health care needs. It applies to persons of all ages who meet the income limitations, and includes medical as well as mental health services. Personal care would generally become an issue when a person is being released from some type of institutional care. If the need for care at home is suggested, a case manager is first involved. This is at the choice of the patient, who may receive a recommendation from a hospital social worker or may select from a list (provided by MAPA) of case managers in his geographical area. The case manager does an assessment and provides it to the attending physician, who in turn makes a recommendation to MAPA, which in its turn makes a determination of eligibility.

The Chief of MAPA's personal care unit indicates that personal care services may be provided to persons who are chronically ill or disabled, including the mentally ill. She says that the mentally ill population served by the program is probably currently very small, as the community programs that resulted from the significant release of patients from residential centers are relatively new. She thinks this could increase, however, and has expressed some concern about dealing with case managers who work at residential facilities and could have had prior contacts with patients or have been involved in release and aftercare decisions. She also indicates that there is not a shortage of case managers in the geographical area where the Employee proposes to serve.

The extent to which patients released from the Employee's facility would be potential personal care clients under the medical assistance program is not clear. The Employee indicates that she does not anticipate that she would deal with mental health clients in this secondary activity. She expects to be doing medical care cases, and to be seeking referrals through the private hospital social workers or through inclusion on MAPA's list of case managers. Her supervisor at the Center does not believe this work would present an issue, though, as noted above, MAPA's Personal Care Services Chief does have concerns.

This request presents issues under the outside employment and interest provisions of §3-103(a)(1)(i) of the Ethics Law. This section prohibits an employee from being employed by or having an interest in an entity that is under the authority of or has contractual dealings with his agency. In evaluating situations such as this under this provision, we have in the past consistently treated provider agreements with DHMH as contracts for purposes of this prohibition. Also, individuals who have private practices or who engage as individuals in provider activities have been viewed as being affiliated with an entity with which they have both employment end interest relationships for purposes of §3-103(a). As was the case with Opinion No. 88-4, this situation therefore presents a prohibited interest and employment, and the question is one of allowance of an exception under the proviso language of the section.

This exception would be permitted pursuant to provision in this section that it applies except where, in accordance with Ethics Commission regulations, there is no conflict of interest or appearance of conflict. The Commission's regulations (COMAR 19A.02.01—employment and COMAR 19A.02.02—interests) set out guideline criteria that are designed to evaluate the potential relationships between private and official activities, to determine whether the two are sufficiently remote that a conflict or appearance of conflict is unlikely. They include, for example, consideration of whether the individual's State duties could impact on the private employer and whether the individual is in the unit of the agency that regulates or contracts with the private employer. They also consider whether the private duties relate to fulfillment of the contract with the agency or whether the individual has responsibilities in the private activity for ensuring compliance with agency requirements. It is these latter criteria that present issues here.

Opinion No. 88-4 applied these criteria to a DHMH employee who wanted to be a case manager provider. The individual there was a part-time employee, her private work was in a different county where there was a shortage of case managers, and the private work existed prior to her State employment. The existence of a shortage of providers was a significant factor in the position taken by the Department in that situation. The Employee here is a clinical and administrative nurse in a field where the interaction between the programs and overlap of populations is not clear, and she is not involved in the administration of the medical assistance program.

There is, however, some possibility of overlap in populations, and there is also a general question of whether agency employees should as a general practice be serving as providers where they must comply with significant agency regulations. We have considered participation by DHMH employees in the medical assistance program in prior cases. The participation as a general matter has been allowed in circumstances involving the more limited strictly cash transaction of reimbursement for services rendered by a practitioner licensed through some independent process. (See, for example, Opinion No. 84-14.) The situation here involves more substantive regulatory relationships, and the providers and case managers are directly supervised and monitored by MAPA. This situation therefore presents substantive and appearance issues, as involvement in the program by agency employees could make regulatory enforcement more difficult and result in other problems.

The DHMH has considered this situation, and has expressed concerns about the difficulties it would present in program monitoring and implementation. The agency has therefore advised the Commission that is "not willing to permit employees of the Department of Health and Mental Hygiene to become Medical Assistance Personal Care Program Case Management providers, unless there is a documented shortage of staff." Taking into account the issues under the regulations, the agency views, and the advice that there is not a shortage in the Employee's area, we conclude that exception would not be appropriate here to permit the Employee to undertake the activity, and advise her that it is therefore barred by §3-103(a)(1)(i).

M. Peter Moser, Chairman
   William J. Evans
   Rev. C. Anthony Muse
   Betty B. Nelson
   Barbara M. Steckel

Date: June 28, 1988