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New York State Ethics Commission
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Advisory Opinion No. 03-1: Reconsideration of Advisory Opinion No. 94-15; whether a former OMRDD clinician can treat his former patients living in OMRDD operated facilities.

INTRODUCTION

The following advisory opinion is issued in response to a request submitted by Paul Kietzman (“Kietzman”), Deputy Counsel with the New York State Office of Mental Retardation and Developmental Disabilities (“OMRDD”), requesting that the Commission reconsider Advisory Opinion No. 94-15 which held that, because of the two-year bar of Public Officers Law §73(8)(a)(i), former OMRDD employees are prohibited from providing medical and clinical services to clients of their former agency residing in OMRDD operated facilities, but may treat OMRDD clients residing in community facilities operated by providers. OMRDD requests reconsideration because compliance with Advisory Opinion No. 94-15 interferes with the continuity of care for the agency’s clients living in OMRDD operated facilities and is likely to affect their clinical progress.

Pursuant to the authority vested in it by Executive Law §94(15), the New York State Ethics Commission (“Commission”) renders its opinion hereby reaffirming its precedent in Advisory Opinion No. 94-15, and holds that the two-year bar prohibits the employee in question from providing clinical services to agency clients residing in OMRDD operated residences. However, he may continue to treat clients that he served in his private practice prior to becoming a State employee even though the clients currently live in OMRDD operated facilities.

BACKGROUND

OMRDD currently has a part-time psychiatrist who provides clinical services to an Article 16 OMRDD operated clinic in [ ], New York. The individual in question has not been designated as a policymaker. In order to devote more time to his private practice, he resigned effective [DATE]. He has offered to continue to treat some of his OMRDD clients in his private practice. The psychiatrist’s caseload while at OMRDD was approximately 200 patients and Kietzman expects that less than 10 are likely to choose to go to the psychiatrist’s private practice(1). Payment for the patient-client services would be made to the doctor by Medicaid.

Kietzman argues that the psychiatrist should be able to continue to treat clients residing in OMRDD operated facilities because several of them have unique behavioral problems and will find it difficult to transition to a new doctor who has yet to be hired by OMRDD. The former employee in question has worked a year with most of these individuals and continuity of treatment is crucial if their behaviors are to be stabilized and maintained.

Kietzman also notes that several of the OMRDD clients are individuals that the psychiatrist saw previously in his private practice before he began work for the State agency. The clients’ cases were transferred to the agency from the psychiatrist’s private practice for logistical reasons. Thus, Kietzman argues that these individuals would be losing their long time treating psychiatrist.

In addition, Kietzman asserts that several clients who live in OMRDD operated homes were serviced by this psychiatrist but in his private practice, apparently as an outside activity. Under the Commission’s precedent, they will not be able to continue to receive services from him for two years once he leaves State service.
Finally, individuals in OMRDD operated residences who were not assigned to the psychiatrist would be prohibited from seeing the psychiatrist for the next two years. Kietzman argues that OMRDD would lose valuable and needed resources as psychiatric services for the agency’s clients are very limited.

APPLICABLE STATUTES


The statutory language setting forth the two-year bar is found in Public Officers Law §73(8)(a)(i) which states:

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 lifetime bar contained in Public Officers Law §73(8)(a)(ii) provides:

No person who has served as a state officer or employee shall after the termination of such service or employment appear, practice, communicate or otherwise render services before any state agency or receive compensation for any such services rendered by such former officer or employee on behalf of any person, firm, corporation or other entity in relation to any case, proceeding, application or transaction with respect to which such person was directly concerned and in which he or she personally participated during the period of his or her service or employment, or which was under his or her active consideration.

DISCUSSION

These above restrictions set the ground rules for what individuals may do with the knowledge, experience and contacts gained from public service after they terminate their employment with a State agency. The two-year bar prohibits former State officers and employees from appearing, practicing or rendering services for compensation in relation to any case, proceeding, application or other matter before their former agency for two years following their separation from State service. A second provision, known as the “lifetime bar,” prohibits former State officers and employees from appearing, practicing, communicating or rendering services before any State agency, and rendering services for compensation in relation to any case, proceeding, application or transaction with respect to which they were directly concerned and in which they personally participated during the period of their State service, or which was under their active consideration during that period.

In Advisory Opinion 94-15, as noted by Kietzman, the Commission responded to a request by the Commissioner of OMRDD that, because the agency was under a mandate to close all of its developmental centers, a large number of its clients would be transferred from OMRDD operated facilities to community providers and that there were a limited number of clinicians who could treat such clients. The Commissioner further argued that former OMRDD employees provided a significant pool of competent, experienced and caring professionals. In permitting the former OMRDD employees to provide clinical services to clients living in the community, the Commission reasoned:

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 [State] 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 (footnote omitted.) OMRDD would have no responsibility with regard to payment.

Notwithstanding the above, the Commission expressed concern should an OMRDD employee seek to contact the former OMRDD employee concerning the treatment provided to an agency client living in the community. The Commission held that such discussions could take place without violating the two-year bar provided that the contact is initiated by OMRDD and the former employee does not charge for any time spent discussing matters with OMRDD staff.

In addition, the Commission reaffirmed that its holding in Advisory Opinion No. 94-15 applied to the provision of clinical services and that a former employee could not otherwise appear, practice or render services for compensation in a matter before his former agency during the two-year post-employment period.

Kietzman’s request is that the Commission re-examine its precedent and extend the holding in Advisory Opinion No. 94-15 to former OMRDD employees seeking to provide clinical services to agency clients residing in OMRDD operated facilities.

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 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.

In Advisory Opinion No. 94-15, the Commission stated that the two-year bar prohibits former OMRDD employees from providing clinical services to OMRDD agency clients residing in its facilities 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, but they would also be rendering services for compensation pursuant to a contract with or a referral from OMRDD. The Commission held that it has consistently barred former employees from conducting any type of business with their former agencies within two years of separation and “[i]t 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.”

In the instant matter, it appears that the individual in question became a part-time OMRDD employee and continued his private practice during this time. He has now left the agency to devote more time to his private practice. He would like to retain (i) some of his agency clients whom he has now treated for a year; (ii) other patients whom he saw in his private practice before he commenced State service but who continued to see him as part of his official OMRDD duties; (iii) other clients who reside in OMRDD operated facilities but were seen by the psychiatrist in his outside private practice after he became a State employee and (iv) other clients who were not seen by the psychiatrist while he was employed by OMRDD, but are now potential patients of his private practice.

All of the clients in question reside in OMRDD operated facilities and, thus, the former employee would have to have contact with his former agency in matters of treatment, scheduling and billing. His contacts with his former agency would clearly be those that are intended to influence decisions and actions. (See Advisory Opinion No. 99-17.) The public could perceive that the former employee will receive preferential treatment from OMRDD on client placement and other issues. Furthermore, under the circumstances presented, the psychiatrist’s brief employment by the State, at the same time that he already had a private practice, could be perceived as an attempt to augment his private practice upon his separation from State service. Therefore, the employee in question may not continue to treat agency clients living in OMRDD operated facilities for two years after the date he left State service.

Notwithstanding the above, the Commission, under the facts presented, will not apply the two-year bar to clients that the former employee saw in his private practice prior to becoming a State employee. These clients were originally his cases; they were never exclusively part of OMRDD’s caseload. Rather, he brought the clients to the State for the short period of time that he was employed by OMRDD. Any concern the former employee used his State position to augment his private practice is de minimis as to these patients. Furthermore, the Commission is reluctant to interrupt the client-clinician relationship where it pre-existed the employee’s short affiliation with OMRDD.

The Legislature may wish to consider whether the result in this case is sound policy or whether an exception to the revolving door provision should be enacted where the continuity of care between the physician and a patient is implicated. As a Commission, however, we must apply the existing law as we read it.

CONCLUSION

The Commission concludes that the post-employment restrictions prohibit the former OMRDD employee from providing clinical services to agency clients residing in OMRDD operated facilities. However, under the circumstances presented, he may continue to treat clients whom he saw in his private practice prior to becoming an OMRDD employee.

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:
Paul Shechtman, Chair
Robert J. Giuffra, Jr.
Carl H. Loewenson, Jr.
Lynn Millane
O. Peter Sherwood,
Members


Dated: February 6, 2003


Endnotes

1. According to OMRDD, three of the agency clients are individuals the psychiatrist served in his private practice before becoming an OMRDD employee.

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