CEO 95-22 -- August 31, 1995
CONFLICT OF INTEREST
FORMER AHCA EMPLOYEE WORKING FOR HEALTH MAINTENANCE
ORGANIZATION CONTRACTING WITH AHCA
To: (Name withheld at the person's request.)
The Code of Ethics permitted a Human Services Program Supervisor II in the Area 3 Medicaid Office of the Agency for Health Care Administration to leave that position for employment with a health maintenance organization which contracted with State to provide managed care services for Medicaid recipients. The employee played no role in the procurement or development of the contract while with the Agency for Health Care Administration, and the contract was not within her responsibility while an AHCA employee. Section 112.3185, Florida Statutes, would not prohibit her employment with a health maintenance organization contracting with the Agency for Health Care Administration.
Was the Code of Ethics for Public Officers and Employees violated where you, formerly employed by the Agency for Health Care Administration as a Human Services Program Supervisor II in the Area 3 Medicaid Office, left State employment for a position with a health maintenance organization which has contracted with the State to provide managed care services to Medicaid recipients?
Your question is answered in the negative.
In your letter of inquiry and through subsequent communications with our staff, we are advised that until April 1994, you were employed by the Agency for Health Care Administration (AHCA) as a Human Services Program Supervisor II in its Area 3 Medicaid Office. During your fourteen-year tenure with the State, you became extremely knowledgeable about Medicaid policy, procedures, and guidelines. You relate that your position responsibilities changed as you progressed through various positions within Area 3, ultimately becoming a supervisor over managed care. We are advised that managed care in Area 3 gradually evolved from nursing staff authorizing services for medically complex children to prepaid health plans (PHP's) and health maintenance organizations (HMO's). In September 1993, the first PHP was approved to begin operating in Hernando County, and within a few months, four HMO's/PHP's were up and running, you advise. Your present employer was one of those first four. We are further advised that your responsibility as a supervisor for managed care entailed direct supervision of nine staff members consisting of three service authorization nurses, one program specialist, two EPSDT counselors, two clerical support staff, and one interviewing clerk. You had oversight responsibility over the EPSDT Program, Service Authorization Program, and the HMO/PHP Program. You further relate that your responsibility in the HMO/PHP area was to review the provider network and perform site visits of primary care physicians under each plan to ensure adequate medical coverage would be available for potential enrollees. A standardized site review form was used and the findings were presented to the provider/consumer relations staff and to the Medicaid Program Administrator for review. The Area 3 Program Administrator for Medicaid made the final decision to allow a plan to begin marketing in a specific county. You state that in addition to these responsibilities, you served as Medicaid's liaison to the Department of Health and Rehabilitative Services, to other state/county entities, and to all of the managed care plans operating in Area 3. You were charged with the responsibility of ensuring that H.R.S. operational staff and other affected entities were well-informed of the dynamics of managed care and its impact on the delivery of current Medicaid-covered services, and you worked to ensure that the Medicaid recipients did not confront barriers in accessing care through their respective HMO's. Finally, you represent that you had no knowledge of or participation in the managed care contractual process while working for AHCA. Medicaid headquarters reviewed and approved contracts according to federal guidelines, and you had no involvement in and no authority to approve or disapprove managed care applications submitted to AHCA. After you left State employment you began working for an HMO contracting with the Agency for Health Care Administration to provide managed care services for Medicaid recipients. At the suggestion of the general counsel for the Agency for Health Care Administration, you now seek an opinion from this Commission about the applicability of Section 112.3185, Florida Statutes, to your situation.
The Code of Ethics for Public Officers and Employees provides:
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 (1993).]
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 (1993).]
Section 112.3185(3) prohibited you from leaving your employment with AHCA for a position with a business entity in connection with a contract in which you participated personally and substantially in the manner described. In other advisory opinions, we have opined that this provision applies to participation in the procurement or development of the contract. See CEO 84-91 and CEO 83-8. However, you have advised that you played no role in AHCA's decision to contract with this particular HMO for managed care services for Medicaid recipients, in the decision to issue the contract to this HMO, or in the procurement or development of the contract. This is similar to the situation we reviewed in CEO 84-104, in which we concluded that no conflict existed where an H.R.S. District III employee had no involvement in a contract negotiated and designed by the Department's program office in Tallahassee. Therefore, we conclude that your employment with the HMO does not violate Section 112.3185(3), Florida Statutes.
Section 112.3185(4) prohibited you from employment with a business entity within two years of leaving AHCA if that employment is in connection with any contract for contractual services which was within your responsibility while an AHCA employee. It does not appear from the information you have supplied that your duties as an AHCA employee involved this particular HMO's contract with the Agency for Health Care Administration to provide managed care services for Medicaid recipients. Thus, Section 112.3185(4) was not violated by your acceptance of employment with the HMO.
Accordingly, we find that the Code of Ethics did not prohibit you from becoming employed by this HMO after leaving your position with the Agency for Health Care Administration.
ORDERED by the State of Florida Commission on Ethics meeting in public session on August 31, 1995, and RENDERED this _____ day of September, 1995.
William J. Rish