CEO 83-18 -- March 10, 1983

CONFLICT OF INTEREST

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES DISTRICT OMBUDSMAN COMMITTEE MEMBER CONTRACTING AS PHYSICIAN WITH DEPARTMENT TO PROVIDE SERVICES IN COMPREHENSIVE ASSESSMENT REVIEW AND EVALUATION PROGRAM

To: Ms. Alicia S. Jacobs, General Counsel, Department of Health and Rehabilitative Services

SUMMARY:

No prohibited conflict of interest would be created were a member of a D.H.R.S. district nursing home and long-term care facility ombudsman committee to contract with the Department as a physician to provide services in a comprehensive review assessment and evaluation program. The committee member would not be acting in a private capacity to sell services to his agency in violation of Section 112.313(3), Florida Statutes, as the committee is an agency which functions independently of the district. Nor would a conflict of interest prohibited by Section 112.313(7)(a), Florida Statutes, be created as it is unlikely that the Committee would deal with a complaint concerning the committee member's contracts with the district.

QUESTION:

Would a prohibited conflict of interest be created were a member of a Department of Health and Rehabilitative Services district nursing home and long-term care facility ombudsman committee to contract with the Department as a physician to provide services in a comprehensive assessment and evaluation program?

Your question is answered in the negative.

In your letter of inquiry you advise that Dr. Irving Vinger is a physician and also the Chairman of the District XI Nursing Home and Long-Term Care Facility Ombudsman Committee. You also advise that he is considering signing a contract to provide services as a physician for the District XI Comprehensive Assessment Review and Evaluation (CARES) Program, under which he would be supervised by the District's Long-Term Care Administrator, who is responsible for long-term care- related functions within the District and who works closely with the District Ombudsman Committee.

District ombudsman committees have been created to protect the health, safety, welfare, and civil rights of residents of nursing homes and long-term care facilities. In doing so, they are authorized to investigate and resolve complaints by residents concerning actions by administrators or employees of these types of facilities and to investigate abuse and neglect in these facilities. Sections 400.307 and 400.314, Florida Statutes (Supp. 1982).

In a telephone conversation with our staff, an attorney on your staff advised that under the CARES contract, the subject physician would participate as a member of a team of health care and social service personnel which screens and reviews applications for State or federal funds to be paid in behalf of an individual who needs long- term care such as that provided in a nursing home. The team may agree with the level of care requested in the application, or may make an alternative recommendation on placement involving one of the following levels of care: home health care, an adult congregate living facility, an intermediate care facility, a nursing home, or hospitalization. The team's recommendation is made to the District Office of Aging and Adult Services which decides whether and to what extent the Department will provide funds.

The Code of Ethics for Public Officers and Employees provides:

DOING BUSINESS WITH ONE'S AGENCY. -- No employee of an agency acting in his official capacity as a purchasing agent, or public officer acting in his official capacity, shall either directly or indirectly purchase, rent, or lease any realty, goods, or services for his own agency from any business entity of which he or his spouse or child is an officer, partner, director, or proprietor or in which such officer or employee or his spouse or child, or any combination of them, has a material interest. Nor shall a public officer or employee, acting in a private capacity, rent, lease, or sell any realty, goods, or services to his own agency, if he is a state officer or employee, or to any political subdivision or any agency thereof, if he is serving as an officer or employee of that political subdivision. The foregoing shall not apply to district offices maintained by legislators when such offices are located in the legislator's place of business. This subsection shall not affect or be construed to prohibit contracts entered into prior to:

(a) October 1, 1975.

(b) Qualification for elective office.

(d) Beginning public employment.

[Section 112.313(3), Florida Statutes (1981).]

This provision prohibits a public officer from acting in a private capacity to sell any services to his agency. However, we find that the District Ombudsman Committee is a separate agency from the District with which the Committee member would be contracting. Your staff has advised that the Committee functions independently of the District, and does not use District staff to perform its functions. In addition, we note that members of the Committee are not appointed by the District, but are appointed by the Committee subject to the approval of the Governor. Section 400.307(5), Florida Statutes (Supp. 1982). Moreover, review of the District Committee's work and appeals from the District Committee are handled by the State Nursing Home and Long-Term Care Facility Ombudsman Committee in the office of the Governor. Sections 400.304 and 400.314, Florida Statutes (Supp. 1982). Therefore, we find that the subject Committee member would not be selling services to his "agency," the District Ombudsman Committee, as that term is defined in Section 112.312(2), Florida Statutes.

In addition, the Code of Ethics provides:

CONFLICTING EMPLOYMENT OR CONTRACTUAL RELATIONSHIP. -- No public officer or employee of an agency shall have or hold any employment or contractual relationship with any business entity or any agency which is subject to the regulation of, or is doing business with, an agency of which he is an officer or employee . . . ; nor shall an officer or employee of an agency have or hold any employment or contractual relationship that will create a continuing or frequently recurring conflict between his private interests and the performance of his public duties or that would impede the full and faithful discharge of his public duties. [Section 112.313(7)(a), Florida Statutes (1981).]

It does not appear that the District, with which the subject Committee member would be contracting, is either subject to the regulation of, or is doing business with, the District Ombudsman Committee within the contemplation of this prohibition. Nor do we find that the Committee member's contractual relationship with the Department would present a continuing or frequently recurring conflict of interest, or impede the full and faithful discharge of his duties as a Committee member. Your staff has advised that it is possible, although not likely, that a complaint could be received by the Committee which would allege that the CARES team had improperly evaluated an application or recommended placement in an inappropriate facility. However, we note that the duties of the Committee as provided in Chapter 400, Florida Statutes, primarily are directed at reviewing conditions in and actions of nursing homes and other long- term care facilities, rather than reviewing actions of the Department. Therefore, we do not feel that the potential for a conflict of interest is so likely or so substantial as to prohibit the subject Committee member from contracting with the Department in the CARES Program. In the event that the Committee is faced with a question involving the Committee member's actions under his contract with the Department, he would be presented with a voting conflict of interest which should be resolved under the provisions of Sections 112.3143 and 286.012, Florida Statutes. See CEO 81-79.

Accordingly, we find that no prohibited conflict of interest would be created were the subject District Ombudsman Committee member to contract with the Department of Health and Rehabilitative Services as a physician to provide services in a comprehensive assessment review and evaluation program.