CEO 93-20 -- July 15, 1993

CONFLICT OF INTEREST

DHRS DEVELOPMENTAL SERVICES EMPLOYEES SEEKING

HRS CERTIFICATION TO BE MEDICAID PAID CASE

MANAGERS FOR THEIR FORMER CLIENTS

To: Ms. Barbara McPherson, HRS District Five Legal Counsel (Largo)

SUMMARY:

No prohibited conflict of interest is created pursuant to Sections 112.313(6), 112.313(7)(a), and 112.313(8), Florida Statutes, by HRS District employees' seeking with non-HRS employees HRS certification as independent case managers where the employees currently provide the same case management services on behalf of HRS to those clients who will become clients of the certified independent providers in the near future. Neither the mere participation of an HRS employee in the certification process nor the certification of the employee creates an employment or contractual relationship in violation of Section 112.313(7)(a), Florida Statutes. Because there is no indication that the employees have used or will use their official positions to obtain a special privilege, benefit, or exemption for themselves or others and because their pursuit of HRS certification does not appear either to interfere with the full and faithful discharge or their public duties or to be inconsistent with the proper performance of their public duties, no violation of section 112.313(6) is found to exist. In addition, because of the extensive public notice given by HRS regarding the certification process and training sessions, the employees' participation does not appear to result from information unavailable to the general public and gained by reason of their HRS positions in violation of Section 112.313(8), Florida Statutes.

A violation of Section 112.313(8) would be created if the HRS employees, while still employed by HRS, were to solicit their HRS Developmental Services Program clients and/or their clients' families concerning their providing independent case management services for them after the employees have become certified and have resigned their employment with HRS. Pursuant to Section 393.13(4)(j), Florida Statutes, Developmental Services Program records, including clients' names, are confidential and exempt from the Public Records Act, so that employees' solicitation would involve the use of information not available to the general public for their personal gain in violation of Section 112.313(8) and could involve the use of official position to secure a special privilege or benefit in violation of Section 112.313(6).

Because no information has been provided indicating that the employees were involved in the procurement process with respect to the HRS contracts for services provided to the District's Developmental Services Program clients, Section 112.3185(3), Florida Statutes, would not prohibit them from providing case management services to their former HRS clients and to those who were HRS clients while they were employed by HRS. Although Section 112.3185(4) prohibits for two years the employees' employment if their employment is with a business entity in connection with any contract for "contractual services" which was within their responsibilities as employees of HRS, because their responsibilities included monitoring the provision of services to their clients and to clients of the unit, they are prohibited from employment with those service providers but not from serving as certified case managers for clients who fell within their "zone of responsibilities." Although during the first year after their termination of employment with HRS Section 112.3185(5), Florida Statutes, prohibits the employees from receiving from HRS for services provided to HRS more than the annual salaries they received prior to their termination of employment with HRS, this limitation would not be applicable because the former employees' case management services would be provided to their clients and not to HRS.

QUESTION 1:

Would a prohibited conflict of interest be created by an HRS employee's seeking with non-HRS employees Independent Support Coordinator certification, which encompasses an HRS workshop and 60 hours of training provided by HRS?

Your question is answered in the negative.

In your letter of inquiry and accompanying materials and in subsequent conversation between our staff and Department of Health and Rehabilitative Services ("HRS") District Five ("District") staff, we are advised that you are requesting this opinion on behalf of Michael C. Becker, HRS District Five Administrator. We also are advised that the District's Developmental Services Program Office is in the process of certifying persons and entities as Independent Support Coordination Providers in order that they may receive Medicaid payments for providing independent case management services to the District's Developmental Services clients. The District Administrator is concerned that three HRS Developmental Services employees, who currently are providing case management services on behalf of HRS to those very clients who will become clients of certified providers after the certification program is under way, are among those persons requesting applications forms. In addition, several other HRS/District V employees who are employed in programs other than Developmental Services have shown an interest in providing this case management, you advise.

The draft rule accompanying your letter, entitled "Developmental Services Home and Community Based Services Waiver for Persons who have Developmental Disabilities Rule" (Fla. Admin. Code Rule 10F-13.000 et. seq.), describes the services provided by a Support Coordinator to Developmental Services Program clients who receive Medicaid services and are enrolled in the Developmental Services Home and Community-Based Services (DS/HCBS) waiver program as follows:

(a) To assist individuals and families to identify resources and access to desired supports and services;

(b) To assist the individual and family in developing and implementing an Individual Support Plan (ISP) or an Individual Family Support Plan (IFSP) to clarify their needs, wants and desires;

(c) To coordinate and access local, state, federal and community resources;

(d) To advocate for individuals and families and to assist them in self-advocacy for appropriate supports and services;

(e) To monitor the supports and services received by the individual and family in order to ensure that supports and services are provided with dignity and respect, and include community presence, enhance competency through functional and meaningful activities and promote community inclusion;

(f) To assure maximum use of natural and community resources;

(g) To maintain expenditures with the District's approved costs for delivery of supports and services; and

(h) To maintain sufficient detailed documentation in the client's record of the supports and services rendered to allow an audit to be made of the appropriateness of the charges.

Support coordination services are provided only when such services are identified on the client's ISP or IFSP as a necessary service. Fla. Admin. Code Rule 10F-13.007(2).

We are advised that the ISP or IFSP also must include a statement signed by the client, his parent, or guardian, which indicates agreement with the plan, an election to receive services under the DS/HCBS waiver program, and an understanding that the payment of supports and services by HRS is contingent upon the availability of funds. Fla. Admin. Code Rule 10F-13.009(4)(e). All HRS Developmental Services' waiver clients must (1) be informed of the feasible alternatives available under the waiver program, (2) be given the freedom to choose whether or not to participate in the program, (3) be given the opportunity to choose from among available and certified and enrolled providers of covered services that are included on the client's support plan, and (4) be afforded the right to change providers or quit the program at any time. Fla. Admin. Code Rule 10F-13.005(4). The HRS Application for Independent Support Coordination Certification indicates that the support coordinators are selected by the client, his parent, or his guardian after reviewing the information sheets describing the agencies and the support coordination services of all the certified and enrolled independent support coordinators in the District, as well as possibly contacting and interviewing some of the support coordinators. The information sheets are provided by the individual support coordinators or their agencies to the District and by the District to the clients.

In order to be certified, you advise, a person must hold a Bachelor of Science degree from an accredited college, have two years of experience working with clients with developmental disabilities, and successfully complete 60 hours of HRS training. We are advised that presently the training is a joint effort of the Department and the District but, in the near future, the training will be taken over exclusively by the District. We also are advised that enrollment in an HRS training session is limited to the first 40 individuals who register.

We are advised that once the District receives an application for certification, it determines whether the applicant meets the qualifications, including the training requirements, and submits the completed application to the HRS Medicaid Office for Medicaid provider enrollment. The District then issues a certificate which is valid for 12 months. The Support Coordinators annually must be recertified and take 24 hours of "inservice" training, you advise. You also advise that approximately 550 HRS clients will be served by those persons who are certified as Medicaid providers in the District.

You advise that the District Administrator questions whether a violation of the Code of Ethics would be created by the HRS employees' seeking certification along with non-HRS employees. Initially, we note that Section 112.322(3)(a), Florida Statutes, permits a public officer or employee who has the power to hire or terminate employees to seek an advisory opinion from us as to the application of the Code of Ethics or Article II, Section 8, Florida Constitution, "to any such employee or applicant for employment." Because we do not have sufficient information to respond generally to the District Administrator's concerns, we will limit ourselves to the applicability of the Code to the Senior Human Services Counselor Supervisor and the Human Services Counselor III positions, for which you have provided position descriptions.

The position description for the Human Services Counselor III indicates that among the duties of the employee are: serving as the team leader in the annual Habilitation Plan Committee meetings with developmentally disabled clients, family members, guardians, and other community agency representatives; writing psycho-social and annual progress reports; completing other necessary forms required by HRS policy and procedure; insuring that reports prepared by vendor agency representatives meet minimum standards; participating in multi-disciplinary meetings when Habilitation Plan Committees are chaired by other agency staff; completing individualized service/case plans on each assigned client; and providing and/or arranging all services and supports identified on the plan. Essentially, the Counselor provides all the services that an Independent Support Coordinator would.

Among the responsibilities of the Senior Human Services Counselor Supervisor are: providing on-going case consultation to unit staff when needed to ensure appropriate services to District Developmental Services Program clients and their families; assuring that unit staff follow HRS and District policy, procedures and guidelines; communicating with unit staff, vendors, and others as to changes in HRS and District policies and procedures; approving and assuring that Purchase of Service funds are expended according to guidelines and the budget is accurately recorded; and maintaining the unit caseload assignment system. The Counselor Supervisor appears to have supervisory responsibilities over HRS employees who have essentially the same responsibilities as an Independent Support Coordinator would, as well as responsibility for the provision of services by the unit as a whole. In addition, the Supervisor provides and/or arranges for "preservice" and "inservice" training for unit staff and maintains his own professional knowledge, skills, and abilities by participating in periodic workshops, training sessions, and staff meetings.

The applicable provisions of the Code of Ethics for Public Officers and Employees are, as follows:

MISUSE OF PUBLIC POSITION.--No public officer or employee of an agency shall corruptly use or attempt to use his official position or any property or resource which may be within his trust, or perform his official duties, to secure a special privilege, benefit, or exemption for himself or others. This section shall not be construed to conflict with s. 104.31. [Section 112.313(6), Florida Statutes.]

For purposes of this provision, the term "corruptly" is defined as follows:

'Corruptly' means done with a wrongful intent and for the purpose of obtaining, or compensating or receiving compensation for, any benefit resulting from some act or omission of a public servant which is inconsistent with the proper performance of his public duties. [Section 112.312(9), Florida Statutes.]

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.]

DISCLOSURE OR USE OF CERTAIN INFORMATION.--No public officer or employee of an agency shall disclose or use information not available to members of the general public and gained by reason of his official position for his personal gain or benefit or for the personal gain or benefit of any other person or business entity. [Section 112.313(8), Florida Statutes.]

Section 112.313(7)(a), Florida Statutes, prohibits a public employee from having an employment or contractual relationship with a business entity or agency which either is doing business with or is regulated by his agency. It also prohibits a public employee from having an employment or contractual relationship which creates a continuing or frequently recurring conflict between his private interests and the performance of his public duties, or which impedes the full and faithful discharge of his public duties. Inasmuch as we have previously concluded that Section 112.313(7)(a) does not prohibit a sworn law enforcement officer from holding a private investigator's license from the Department of State [In re Steven Rubino, 13 F.A.L.R. 1832 (Final Order 1/28/91)] because the mere holding of a license does not constitute an employment or a contractual relationship, we find that the mere participation by the HRS employees in the certification process, including participation in the training program, in and of itself, also does not create a violation of Section 112.313(7)(a), Florida Statutes. See also CEO 91-34.

Section 112.313(6), Florida Statutes, prohibits the employees from using or attempting to use their official positions or any resource which may be within their trust to secure a special privilege or benefit, where their actions are taken with wrongful intent for the purpose of obtaining a benefit for themselves or another and are inconsistent with the proper performance of their public duties. In previous opinions, we have observed that this statute requires a determination of intent which is extremely difficult to make while rendering an advisory opinion, since intent is to be determined from an examination of all relevant circumstances. For purposes of this opinion, however, we will assume that neither employee has any responsibility for or involvement with either establishing or scheduling the 60 hour training course or the District's certification process.

In CEO 83-92, we advised that outside employment by a State employee with a private entity doing business with his agency was permissible where the employee's responsibilities had no involvement with the private entity. In doing so, we applied Section 112.316, Florida Statutes, which provides:

CONSTRUCTION.--It is not the intent of this part, nor shall it be construed, to prevent any officer or employee of a state agency, or county, city or other political subdivision of the state or any legislator or legislative employee from accepting other employment or following any pursuit which does not interfere with the full and faithful discharge by such officer, employee, legislator, or legislative employee of his duties to the state or the county city, or other political subdivision of the state involved.

Although we typically have applied this provision to conflict of interest situations, we find that it also is applicable under these circumstances where (1) we have not been made aware that either employee has any involvement with the certification process or the certification training program, (2) the training program schedule has been publicly noticed in two local newspapers and the Administrative Law Weekly, and (3) the employees have taken annual leave to attend the training program and workshop. Under the circumstances, the pursuit of the HRS employee's Independent Support Coordination Provider Certification does not appear to interfere with the full and faithful discharge of their public duties or to be inconsistent with the proper performance of their public duties. There also is no indication that the employees have used or will use their official positions to obtain a special privilege, benefit, or exemption for themselves or others.

Section 112.313(8), Florida Statutes, prohibits the HRS employees from using information unavailable to the general public and gained by reason of their HRS positions for their personal gain or for the benefit of any other person or business entity. Inasmuch as the pre-enrollment conference (workshop) and training sessions have been noticed in two local papers with statewide circulation and the Administrative Law Weekly, it does not appear that the employees participation in the certification process or the training program would violate this provision, as their participation does not appear to have been gained from information unavailable to the general public and gained by reason of their HRS positions.

Accordingly, we find that the Code of Ethics does not prohibit District V HRS employees from participating with non-HRS employees in the Independent Support Coordination Provider Certification procedure which encompasses a workshop and sixty hours of training provided by the District and/or HRS.

QUESTION 2:

Would a prohibited conflict of interest be created if the HRS employees, while still employed by the department, were to approach clients and/or clients' families concerning their providing independent case management services for them after the employees have become certified and have resigned from their employment with HRS?

Your question is answered in the affirmative.

In addition to the Code provisions referred to under Question 1 above, another relevant provision of the Code is Section 112.313(2), Florida Statutes, which provides:

SOLICITATION OR ACCEPTANCE OF GIFTS.--No public officer, employee of an agency, or candidate for nomination or election shall solicit or accept anything of value to the recipient, including a gift, loan, reward, promise of future employment, favor, or service, based upon any understanding that the vote, official action, or judgment of the public officer, employee, or candidate would be influenced thereby.

This provision would prohibit the subject employees from accepting a promise of future employment based on the understanding that their actions as public employees would be influenced thereby. Because we have not been provided with any information that indicates that the subject employees have offered to provide or recommend services that their clients may not be entitled to or services in excess of the amount of services that the District allocates to their clients, or otherwise have failed to follow HRS and District policies and procedures with respect to their evaluations and recommendations of services for their clients in exchange for their clients' and/or their families' promise to select them as Independent Support Coordinator Providers, no violation of Section 112.313(2) is found.

As noted above, Section 112.313(6), Florida Statutes, could be violated if the employees were to use their positions in a manner inconsistent with the proper performance of their public duties, such as to provide or recommend services on the client's habilitation plan that the client may not be entitled to or services in excess of the amount allocated by the District to each client. We caution that a misuse of position in violation of Section 112.313(6) also could exist if, for example, in anticipation of being selected as the Independent Support Coordinator by the client, the employees included the services of an Independent Support Coordinator as a recommended medicaid service on the clients ISP or IFSP when none was necessary.

However, we conclude that Section 112.313(8), Florida Statutes, would be violated under the circumstances presented. The subject employees would be approaching their clients and/or their clients's families concerning their providing independent case management services for their clients after they have become certified and have resigned their employment with HRS. Pursuant to Section 393.13(4)(j), Florida Statutes, HRS client records, including clients' names, are confidential and exempt from the provisions of Section 119.07(1), Florida Statutes (the Public Records Act). Therefore, by soliciting their HRS clients to select them to provide independent case management services in the future, the subject employees would be using information not available to the public for their own personal gain--that is, to put themselves at a distinct advantage over other certified Independent Support Coordinators who did not have an HRS case load. This also could constitute a violation of Section 112.313(6), being the use of official position in a manner inconsistent with the proper performance of public duties to secure a special privilege or benefit.

Accordingly, we find that a violation of Section 112.313(8), Florida Statutes, would exist if the HRS employees, while sill employed by HRS, were to solicit their HRS Developmental Services clients and/or their clients' families concerning their providing independent case management services for the clients after the employees have become certified and have resigned their employment with HRS.

QUESTION 3:

Would a violation of the Code of Ethics be created if, after they have become enrolled as Medicaid eligible providers and after they have terminated their employment with HRS, the HRS employees were to provide case management services to clients who were in their case loads while they were employed by HRS or to clients who, while not in the employees' case loads, were HRS clients while the employees were employed by HRS?

Your question is answered in the negative.

The Code of Ethics 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.]

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 Statues.]

The sum of money paid to a former agency employee during the first year after the cessation of his responsibilities, by the agency with whom he was employed, for contractual services provided to the agency by him, shall not exceed the annual salary received by him on the date of cessation of his responsibilities. The provisions of this subsection may be waived by the agency head for a particular contract if the agency head determines that such waiver will result in significant time or cost savings for the state. [Section 112.3185(5), Florida Statutes.]

For purposes of this section, "contractual services" is defined as set forth in Section 287.012, Florida Statutes. See Section 112.3185(1)(a), Florida Statutes. Such services as evaluations, consultations, educational training programs, and social services come within the meaning of the term as long as they are rendered by individuals and firms who are independent contractors. We find, therefore, that the term encompasses the types of services typically listed on an HRS Developmental Services client's habilitation plan to be provided by private vendors.

Section 112.3185(3), Florida Statutes, restricts the employment which an employee may seek after leaving HRS by prohibiting employment with a business entity in connection with a contract in which the employee participated personally and substantially through decision, approval, disapproval, recommendation, rendering of advice, or investigation. See CEO 83-8 and CEO 91-67. Section 112.3185(4) also would prohibit the former HRS employees from being employed with a business entity in connection with any contract for services which was within their responsibilities during the two-year period following their leaving their positions with HRS. We noted in CEO 82-67 that Section 112.3185(4) differs from Section 112.3185(3) in three ways. First, it is more limited as to the time period it governs--specifically, a two-year period following the employee's resignation or termination. Secondly, it is more general as to what activities of a former agency employee are prohibited. Thirdly, it applies only to contracts for services, such as the medicaid services offered to HRS Developmental Services clients.

In CEO 83-8, we opined that the prohibition of Section 112.3185(3) is directed to those persons who participated in the procurement or development of a contract through "decision, approval, disapproval, recommendation, rendering of advice or investigation." We limited our interpretation of this list of activities to the procurement process. Because we have not been provided with any information that indicates that either employee was involved in the procurement process with respect to the HRS contracts for services provided to Developmental Services clients, Section 112.3185(3) would not prohibit them from providing case management services to former HRS clients and to those who were HRS clients while they were employed by HRS.

Section 112.3185(4), Florida Statutes, also prohibits the HRS employees' employment with a business entity if their employment s in connection with any contract for "contractual services" which was within their responsibilities as employees of HRS. In CEO 83-8, we determined that a contract was within an employee's responsibility where that employee had a duty to monitor an alcohol detoxification program of a contract provider where the monitoring included such tasks as comparing program policies, procedures, and client records with agency requirements and certification for insurance payments. In that case, the tasks which brought the employee within the required "zone of responsibility" arose out of the contract's existence and were directly related to it. Such is not the case where the employee merely makes referrals to the contract provider, in which case the existence of the contract is incidental to the employee's responsibility to assist clients. See CEO 85-57.

Because the responsibilities of both the Human Services Counselor and the Human Services Counselor Supervisor included monitoring the provision of services to their clients by the contract providers, we find that, in the case of the Human Services Counselor III, he is prohibited for a period of two years from the date of his termination of employment from HRS from holding any employment or contractual relationship with a business entity in connection with a contract for "contractual services" for any of his former clients, and, in the case of the Human Services Counselor Supervisor, in connection with a contract for "contractual services" for any client of the unit that he was responsible for. Therefore, both employees would be permitted to serve as Independent Support Coordinators for HRS clients, although they would be prohibited from employment with the business entities that were providing services to their former HRS clients.

During the first year after his termination of employment with the agency, Section 112.3185(5) prohibits a former agency employee from receiving from HRS in connection with a contract with the agency in excess of the annual salary received by him on the date of his termination of employment from the agency. We find, however, that this provision does not apply here, because the former HRS employees would not be contracting back with HRS when they provide services as Independent Support Coordinators; their services would be provided to their clients rather than to their former agency, HRS.

Accordingly, we find that no violation of the Code of Ethics would be created if, after the Human Services Counselor and the Senior Human Services Counselor Supervisor become enrolled as Medicaid eligible providers and after they terminate their employment with HRS, they provide case management services to HRS clients.