CEO 88 - 4 -- February 4, 1988
CONFLICT OF INTEREST
D. H. R. S. MEDICAID EMPLOYEE SERVING
AS GUARDIAN FOR MEDICAID APPLICANT
To: (Name withheld at the person's request.)
No prohibited conflict of interest exists under Section 112.313(7)(a), Florida Statutes, where a registered nurse specialist in the Medicaid Program Office of the Department of Health and Rehabilitative Services assumes the guardianship of an individual who has applied for Medicaid, as a guardianship cannot be characterized as an employment or contractual relationship.
Does a prohibited conflict of interest exist where a registered nurse specialist in the Medicaid Program Office of the Department of Health and Rehabilitative Services assumes the guardianship of an individual who has applied for Medicaid?
Under the circumstances presented, your question is answered in the negative.
In your letter of inquiry you advise that .... is a Registered Nurse Specialist with the District V CARES (Comprehensive Assessment and Review of Long Term Care Services) Unit, Medicaid Program Office, Department of Health and Rehabilitative Services. In a telephone conversation with our staff, her supervisor advised that she evaluates individuals for Medicaid eligibility, files Medicaid applications, and provides placement services. Her position involves professional work in the Medicaid preadmission screening program monitoring medical needs for appropriate placement in the Long Term Care System. She is responsible for conducting comprehensive preadmission screening assessments of nursing home applicants, developing and arranging case management plans, and participating in the monitoring of placement decisions.
The CARES Unit is responsible for establishing the necessary level of care for all Medicaid/Institutional Care Program (ICP) applicants and for making a nonbinding recommendation for placement in the least restrictive environment which can meet a client's needs. This "level of care" decision is made either by a desk review of medical information submitted by a nursing home or by an on-site assessment performed by a CARES Human Services Analyst and a CARES Registered Nurse Specialist. This medical information then is evaluated by the Medicaid contract physician consultant, the assigned CARES team, and the CARES Unit Supervisor, who establish the CARES recommendation. The "level of care" function is designed to determine whether a Medicaid applicant requires either an "intermediate" or "skilled" level of care according to Chapter 10C-7, Florida Administrative Code. If an individual does not meet this nursing home level of care, he is declared ineligible for the Institutional Care Program payment to a nursing home. An individual also must satisfy seven additional factors of eligibility in order to qualify for the Institutional Care Program.
You further advise that the Registered Nurse Specialist recently assumed the guardianship of an individual who resided at a nursing home where she was a part-time employee. She resigned from this position when the nursing home applied for a Medicaid provider number. The petition for evaluation of the ward's competency was signed by the social services designee at the nursing home, a Department Adult and Aging Program employee, and a CARES Unit Human Services Analyst. The Registered Nurse Specialist informed her supervisor of the guardianship after she had assumed the responsibility. She informed her supervisor that her ward never had been a Department client, but that she soon would be applying for ICP Medicaid for her ward. Her supervisor later discovered that she previously had filed the Medicaid application and requested retroactive payment for several months. In a telephone conversation with our staff, the supervisor advised that if the application is approved, Medicaid payments will be made directly to the providing nursing home while the guardian will be required to pay the client responsibility portion of any costs out of her ward's assets. You question whether a prohibited conflict of interest exists where the Registered Nurse Specialist serves as the guardian for this individual.
The Code of Ethics for Public Officers and Employees provides in relevant part:
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 (1987).]
This provision prohibits a public employee from having any employment or contractual relationship with any business entity which is subject to the regulation of, or doing business with, her agency. The subsection also prohibits such an employee from having any employment or contractual relationship which creates a continuing or frequently recurring conflict or that impedes the full and faithful discharge of her public duties.
A "guardian" is one to whom the law has entrusted the custody and control of the person, property, or both, of an incompetent individual. A guardian is appointed by the court and is entitled to receive a reasonable fee for any services she renders on behalf of her ward. These fees are payable by the court. See Chapter 744, Florida Statutes. The relationship between a guardian and ward is of a fiduciary nature under court supervision and in our view cannot be classified as an employment or contractual relationship. Therefore, we are of the opinion that Section 112.313(7)(a) does not apply in such an instance.
However, please note that Department employees also are prohibited by the following provisions of the Code of Ethics from misusing their official positions and from disclosing or using information not available to the general public for their personal benefit:
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 (1987).]
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 (1987).]
Our authority is limited to determining whether any provision of the Code of Ethics has been violated in a particular instance. Nevertheless, we are concerned that a considerable possibility for conflict exists within the guardianship process where Department employees frequently come into contact with elderly individuals and nursing home personnel while performing their public duties. Therefore, we would suggest that the Department consider the adoption of appropriate rules or regulations which would prevent potential conflicts in this context.
Your question is answered accordingly.