|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.|
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.
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.
Paul Shechtman, Chair
Robert J. Giuffra, Jr.
Carl H. Loewenson, Jr.
O. Peter Sherwood,
Dated: February 6, 2003
1. According to OMRDD, three of the agency clients are individuals the psychiatrist served in his private practice before becoming an OMRDD employee.