New York State
Ethics Commission


Advisory Opinion No. 94-15: Application of Public Officers Law §73(8) to former employees of the Office of Mental Retardation and Developmental Disabilities who wish to provide clinical services to clients of their former agency.

Introduction

The following advisory opinion is issued in response to a request from Thomas A. Maul, Commissioner of the New York State Office of Mental Retardation and Developmental Disabilities ("OMRDD"). Commissioner Maul asks that the State Ethics Commission ("Commission") clarify its Advisory Opinion No. 93-12, which addressed the question of whether former employees of a State agency may provide medical or clinical services to clients of the agency.

Pursuant to its authority under Executive Law §94(15), the Commission hereby renders its opinion that for the reasons set forth in Advisory Opinion No. 93-12, Public Officers Law §73(8) prohibits former OMRDD employees from providing medical or clinical services to clients of their former agency residing in OMRDD operated facilities. However, the Commission also clarifies that Opinion and finds that such former employees may treat OMRDD patients residing in community facilities operated by other than OMRDD under the conditions set forth in this opinion.

Background

On March 8, 1993, the Commission issued Advisory Opinion No. 93-12 in which it held that a physician who was a former employee of the New York State Office of Mental Health could not treat her former State patients for two years following her separation from State service because such treatment would result in her appearing, practicing and/or rendering services for compensation in a matter before her former State agency in violation of the two year bar of Public Officers Law §73(8). (See Advisory Opinion No. 93-12, discussed infra.)

According to Commissioner Maul, the conclusions reached by the Commission in Advisory Opinion No. 93-12 may have serious implications for OMRDD, as that agency is under a mandate to close all of its developmental centers before the year 2000. At that time, approximately 5,000 mentally retarded and developmentally disabled individuals now living in the agency's developmental centers, and receiving medical, dental and other clinical services from OMRDD employees, will be living in the community with a continuing need for the same medical or clinical services. Maul believes that such services will be difficult to obtain without the availability of former OMRDD employees.

As OMRDD continues to close developmental centers, Maul anticipates that many physicians and other clinical personnel will decide to leave State service for private practice. Maul states that precluding such former OMRDD employees from continuing treatment of their former State patients will break the continuity of care, which is crucial for medically needy and medically fragile individuals with developmental disabilities.

In addition, Maul states that since few physicians in private practice are willing to accept Medicaid patients, he believes that precluding former OMRDD employees from treating such persons will make obtaining medical care for them very difficult, if not impossible. Former employees will be needed, he says, to provide services, as private practitioners, both to persons in OMRDD operated facilities and to individuals placed by OMRDD in the community. It is anticipated that OMRDD or the community providers will, in some cases, seek to contract directly with the former OMRDD employees. However, it is more likely that the agency or community providers will refer clients to available practitioners in the area.

Currently, OMRDD has a list of 8,487 individuals already living in the community in need of dental care; 9,723 in need of medical care; 7,347 in need of psychological services; 15,180 in need of counselling; and 8,953 in need of speech therapy, occupational therapy and/or physical therapy. These individuals, some of whom may be in need of more than one of these clinical services, are not currently receiving such services and are looking to OMRDD to provide or arrange for them. Again, Commissioner Maul argues that former OMRDD employees provide a competent, experienced and caring pool of professionals who are available.

OMRDD's position is that by merely providing medical or clinical services, former OMRDD employees are not appearing, practicing or rendering services for compensation before the agency in violation of Public Officers Law §73(8). It argues that Medicaid rates are set by the New York State Department of Health ("DOH") and billing is performed by the Department of Social Services. Physicians and clinical personnel are professionally licensed by either DOH or the State Education Department. Maul contends that the need for continuity of care and the general unavailability of medical/clinical services to persons with developmental disabilities outweighs the factors that would tend to preclude treatment by former OMRDD employees.

Based on these arguments, Commissioner Maul asks the Commission to clarify Advisory Opinion No. 93-12.

Applicable Law

Public Officers Law §73(8) states, in relevant part, that:
No person who has served as a state officer or employee shall within a period of two years after the termination of such service or employment appear or practice before such state agency or receive compensation for any services rendered by such former officer or employee on behalf of any person, firm, corporation, or association in relation to any case, proceeding or application or other matter before such agency.

The above provision of §73(8) is broad in scope. It prohibits appearing, practicing or the rendering of services for compensation on any matter before one's former State agency for a two year period.

Discussion

In Advisory Opinion No. 93-12, the Commission concluded that a physician formerly employed by a State facility and subsequently employed by a private not-for-profit professional corporation was barred by Public Officers Law §73(8) from treating patients from her former facility for two years after her separation from State service because she would be appearing, practicing and/or rendering services for compensation in a matter before her former agency. It made no difference that the medical services could be performed outside of the former State facility.

The Commission based its opinion on a similar situation that arose concerning physicians formerly employed by the Roswell Park Cancer Institute ("Roswell"), a DOH facility. Within two years of their separation of service from Roswell, the physicians became employees of UMPS, a private entity, which had contracted with DOH to provide medical services at Roswell. The arrangement caused the former Roswell employees to render professional services at the facility and thereby to appear before their former agency within two years of their separation of State service in violation of Public Officers Law §73(8). Specific legislation enacted in 1992 authorized the affiliation agreement between Roswell and UMPS.(1)

Upon reconsideration of the matter, the Commission concludes that Advisory Opinion No. 93-12 is correct; that is, Public Officers Law §73(8) bars former OMRDD employees from providing clinical services to OMRDD's patients during the two year post-employment period because the former employees would not only be physically appearing at their former agency and interacting with OMRDD employees there, but they would also be rendering services for compensation pursuant to a contract with or a referral from OMRDD. The Commission consistently has barred former employees from conducting any type of business with their former State agencies within two years of termination from State service, and it finds no legal support for exempting former OMRDD employees who provided medical and clinical services at OMRDD facilities from the rule which is at the heart of the post-employment restrictions.

Similarly, and consistent with Advisory Opinion No. 93-12, former OMRDD employees may not treat clients residing in OMRDD facilities even if the clinical services are to be performed at a location other than an OMRDD facility. While it can be argued that such an arrangement eliminates the need for former OMRDD employees to physically appear at their former agency, and is, thus, less offensive to the spirit of the "revolving door", it is likely, if not inevitable, that the former OMRDD employees will interact regularly with current OMRDD employees. Therefore, the Commission concludes that such an arrangement would violate Public Officers Law §73(8) during the former employees' two year post-employment period.

Notwithstanding the above, the Commission, in its review of Advisory Opinion No. 93-12, has concluded that the legal consequences are different when former OMRDD employees perform medical or clinical services in their private practices for those OMRDD clients who reside in community facilities licensed by OMRDD but not operated by the agency. In this situation, the practitioner would be appearing, practicing and/or rendering services for compensation for the community facility.

When serving clients living in such community facilities, former OMRDD employees would not be physically appearing at their former agency. They would be less likely to interact with current OMRDD employees who, for facility residents, might accompany patients to a doctor's office. Their interaction (i.e., appearance) would, in most circumstances, be with employees of community facilities. In addition, OMRDD would not have to contract with practitioners to provide services for clients located in the community or even arrange for the clients to be seen. Arrangements would be made by staff at the community facility, and private practitioners would directly bill either Medicare, third-party insurance or Medicaid for their services.(2) OMRDD would have no responsibility with regard to payment.

One concern in this situation is the possibility that an OMRDD employee may wish to contact a former OMRDD employee concerning the treatment provided to a client residing in the community. Such discussions may take place without violating Public Officers Law §73(8) provided: (1) the contacts are initiated by OMRDD and, (2) the former OMRDD employees do not charge for any time spent discussing matters with OMRDD staff.

In treating residents of community facilities, former OMRDD employees must remember that only the rendering of medical or clinical services to agency clients residing in such community facilities is permitted. They may not appear, practice, or render services for compensation in any matter before their former agency during the two year post-employment period. For example, a former OMRDD employee, who is otherwise permitted to provide medical or clinical services for agency clients at a community facility, may not assist the facility in any way in preparing for or responding to an OMRDD inspection of the facility, or in preparing a license application or funding request.

Conclusion

Former OMRDD employees engaged in private practice may not, without violating the two year post-employment provisions of Public Officers Law §73(8), provide medical and clinical services to OMRDD clients residing in OMRDD facilities, but they may supply such services to agency clients residing in private community facilities operated by other than OMRDD under the conditions set forth in this opinion.

This opinion, until and unless amended or revoked, is binding on the Commission in any subsequent proceeding concerning the person who requested it and who acted in good faith, unless material facts were omitted or misstated by the person in the request for opinion or related supporting documentation.

All concur:

Joseph M. Bress, Chair

Barbara A. Black,
Angelo A. Costanza,
Robert E. Eggenschiller,
Donald A. Odell, Members

Dated: June 21, 1994


Endnotes

1. See Laws of 1992, chapter 293.

2. Medicare is administered by the Heath Care Finance Administration with no State oversight; with respect to Medicaid, the Department of Social Services is the single State agency which administers payment.



URL: http://www.nysl.nysed.gov/edocs/ethics/94-15.htm