CEO 84-115 -- November 29, 1984

CONFLICT OF INTEREST

FORMER D.H.R.S. EMPLOYEE EMPLOYED BY COMPANY SEEKING TO DO BUSINESS WITH D.H.R.S.

To: Dr. Erwin P. Bodo, Former Medicaid Program Integrity Administrator, Office of Medicare, Department of Health and Rehabilitative Services

SUMMARY:

No prohibited conflict of interest would be created were a company which employs the former Medicaid Program Integrity Administrator for the Department of Health and Rehabilitative Services to contract with the Department to conduct a survey pertaining to the Medicaid Pharmacy Program, where the former employee had no responsibility for the Medicaid Pharmacy Program or the proposed contract.

QUESTION:

Would a prohibited conflict of interest be created were a company which employs you to contract with the Department of Health and Rehabilitative Services to conduct a survey pertaining to the Medicaid Pharmacy Program, where you formerly were employed by the Department as Medicaid Program Integrity Administrator but had no responsibility for the Medicaid Pharmacy Program or the proposed contract?

Your question is answered in the negative.

In your letter of inquiry and in a telephone conversation with our staff you have advised that you are a former employee of the Department of Health and Rehabilitative Services. You also advise that you presently are employed by a private company which is submitting a proposal to conduct a pharmacy fee survey pursuant to a request for proposals issued by the Office of the Deputy Assistant Secretary for Medicaid within the Department. The survey is required periodically by federal regulations in order to determine the amount which will be paid to pharmacies under the Medicaid program.

As an employee of the Department you served as Medicaid Program Integrity Administrator in charge of the Program Integrity Section of the Office of Medicare, one of five sections within that Office. In that position, you had no responsibility for the Medicaid Pharmacy Program and had absolutely no involvement with the request for proposals for the pharmacy fee survey, which was developed by two other Sections within the Office of Medicaid. In 1980 in a prior position with the Department, you served as contract manager for an earlier pharmacy fee survey, but since that time you have had no contact with Medicaid policies regarding pharmacies.

The Code of Ethics for Public Officers and Employees provides in relevant part:

No agency employee shall, after retirement or termination, have or hold any employment or contractual relationship with any business entity other than an agency in connection with any contract in which the agency employee participated personally and substantially through decision, approval, disapproval, recommendation, rendering of advice or investigation while an officer or employee. [Section 112.3185(3), Florida Statutes (1983).]

No agency employee shall, within 2 years of retirement or termination, have or hold any employment or contractual relationship with any business entity other than an agency in connection with any contract for contractual services which was within his responsibility while an employee. [Section 112.3185(4), Florida Statutes (1983).]

In our view, neither of these prohibitions would prohibit your employer from contracting with the Department to handle the pharmacy fee survey. First, it is clear that you have not participated personally or substantially in any manner in the development of the contract for the survey. Secondly, the contract for the survey was not within your responsibility while an employee of the Department, unlike the 1980 survey for which you served as contract manager.

Accordingly, we find that no prohibited conflict of interest would be created were your employer to contract with the Department to conduct the pharmacy fee survey for the Office of Medicaid.