CEO 91-44 -- July 19, 1991
CONFLICT OF INTEREST
DHRS COORDINATOR FOR HIV TESTING AND COUNSELING TRAINING
PROVIDING SUCH TRAINING TO PRIVATE MEDICAL PERSONNEL
To: (Name withheld at the person's request.)
A prohibited conflict of interest would be created under Section 112.313(7)(a), Florida Statutes, were a senior human services program specialist with the Department of Health and Rehabilitative Services who is responsible for training and certification of health care providers in HIV testing and counseling to privately provide HIV counseling and testing training to private health care facilities and personnel licensed by DHRS, due to the responsibility and role of the employee in developing such a training program and in the formation of administrative rules concerning such training. CEO 87-61, CEO 82-79, and CEO 81-54 are referenced.
Would a prohibited conflict of interest be created were you, a Senior Human Services Program Specialist with the Department of Health and Rehabilitative Services who is responsible for training and certification of health care providers in HIV testing and counseling, to privately provide such counseling and testing training to private health care personnel?
Your question is answered in the affirmative, subject to the exception discussed below.
In your letter of inquiry, other materials sent to our staff, and telephone conversation with our staff, you advise that you are employed as the training coordinator for the Counseling, Testing and Partner Elicitation Unit in the DHRS AIDS Program. You further advise that you train and certify the HIV trainers and counselors for county public health units, DHRS district staff, Department of Corrections staff, and DHRS contract providers. Using information and materials from the Centers for Disease Control and other sources, you designed and implemented a DHRS training program for HIV testing and counseling trainers. You taught this program to public providers, and you currently evaluate the performance of the trainers. The program you developed for DHRS and what you would be teaching private providers could be learned and put together without using any information peculiar to DHRS, you advise.
The content of the training you would be providing privately is specified in Chapter 10D-93, Florida Administrative Code; these rules were promulgated by DHRS and were developed by your office or section of DHRS. During the development process, you were given the opportunity to provide comments and suggestions regarding the content of the rules. The rules are enforced only against public providers of HIV testing and counseling, by quality assurance personnel of DHRS who are not a part of your office. These rules provide that the DHRS AIDS Program, your office, can be contacted regarding such counseling and testing training and requirements for the same. Any contact is handled by another official in your office and you do not receive such calls or correspondence; you have no input regarding responses to such contacts. You would do none of your private work during working hours for DHRS, and you would produce privately your visual aids and other materials used in the private sessions.
Your DHRS job description provides in part:
Coordinates the counseling and testing training workshops in the Department of Health and Rehabilitative Services facilities, primary health care centers, and private health care sectors.
Provides training programs to private health care providers and assists with training in county public health units, district personnel, other HRS facilities, and other sites to evaluate risk for HIV infection and to offer counseling and testing accordingly.
Supervises and evaluates statewide training activities by counseling and testing staff.
Assists with the preparation of reports on monitoring sessions and consults with the various providers on necessary changes.
Surveys Florida physicians and other health care providers regarding training needs.
Assists in the development and modification of statewide training materials and programs on counseling and testing for HIV infection and partner notification.
Provides technical assistance to counselors on AIDS, HIV and counseling issues.
Performs other duties as assigned.
Knowledge of AIDS, HIV infection, and counseling techniques. Knowledge of county public health unit programs and community resources. Ability to provide training, supervise personnel, and evaluate effectiveness of local HIV counseling efforts and counseling, testing, and partner notification services. Ability to work effectively with a wide variety of people.
To your knowledge, there are not any contracts between DHRS or its subunits and the private entities you would be providing services to. DHRS clients could be referred to the private entities, but in no way would you be involved with any such referrals. You have no contact in your public position with any such clients. Your public position has no role in the regulation, monitoring, or inspecting of the private entities, you advise. Your private training would involve health care personnel outside of DHRS, county public health units, and State facilities. Even though your written job description appears to provide otherwise, you advise that DHRS provides no HIV counseling and testing training to private health care providers. (You expect to receive a new written job description soon which more accurately reflects your duties.) This is due to DHRS's determination that it possesses inadequate resources to provide such training beyond the public sector and is unable to enforce proper use and implementation of such training. The decision not to provide such training to private providers was made at a level higher than yours at DHRS, and you had no role in the decisionmaking. You play no role in the licensing of DHRS-licensed health care facilities or professionals. The content of HIV testing and counseling training required of licensees of the Department of Professional Regulation is determined by their respective boards and not DHRS.
Section 112.313(7)(a), Florida Statutes, 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.
In particular, this provision prohibits you from having any employment or any contractual relationship that will create a continuing or frequently recurring interest between your private interests and the performance of your public duties or that would impede the full and faithful discharge of your public duties.
We are of the view that your providing HIV testing and counseling to private entities in a private capacity would create a continuing or frequently recurring conflict between your private interests and the performance of your public duties and would impede the full and faithful discharge of your public duties. This is due to DHRS's authority regarding HIV counseling and testing training for health care facilities and professionals licensed by DHRS and your role in the development of administrative rules regarding such training. See CEO 87-61, Question 2, where we found that a prohibited conflict of interest would be created were a member of the Criminal Justice Standards and Training Commission who was also a training center director to act as a consultant to persons involved in the training of law enforcement and corrections personnel in the State. There, we found that the private employment would impede the performance of the official's public duties because he was responsible for certifying law enforcement officers, correctional officers, and correctional probation officers, as well as for certifying instructors and establishing training standards and curricular requirements. In your situation, you likewise play a role in establishing administrative rules regarding HIV testing and counseling training and in establishing training standards and curricular requirements for entities and professionals licensed by DHRS.
However, regarding entities and professionals not licensed by DHRS, we are not persuaded that such a conflict is present. See CEO 87-61, Question 1. Nevertheless, if the program you provide privately to entities and professionals not licensed by DHRS is the same program you developed for DHRS as part of your public duties, or if the program contains any information not available to the general public and gained by reason of your position with DHRS, your provision of it would constitute a prohibited conflict of interest. See CEO 82-79 and CEO 81-54.
Further, we caution you that should the duties on your job description concerning private health care providers become real and actual duties of your position, and should such duties pertain to private providers not subject to DHRS licensure, you also would be prohibited from privately providing training to those persons or entities.
Accordingly, we find that a prohibited conflict of interest would be created were you, a Senior Human Services Program Specialist with DHRS who is responsible for training and certification of health care providers in HIV testing and counseling, to privately provide HIV testing and counseling training to private health care personnel, subject to the exception noted above.