Talk to Me
Elder law attorney calls you and tells you he has a client that is about to apply for nursing facility Medicaid who he is concerned will not qualify due to resources over the allowable limit. He asks you to review the client's annuity contract and provide an opinion on whether they would be considered resources by the agency. Is this ethical to provide an opinion?
No.
Providing a legal opinion for a private attorney on behalf of a client and before they have applied for benefits could give the appearance of favoritism and impropriety.
The appearance of impropriety occurs when "reasonable minds, with knowledge of all the relevant circumstances disclosed by a reasonable inquiry, would conclude that honesty, integrity, impartiality, or temperament is impaired."
Girlfriend applies for Medicaid listing boyfriend and her two children as household members on the application. Boyfriend then moves out and the relationship ends. Boyfriend sends an open records request requesting copies of all applications and case records that he has been named as a household member in. He has no authorization or release form from girlfriend. Can HHSC release this information?
Yes but redaction of the girlfriend and her children's sensitive personal information (SPI) and any personal health information (PHI) must be done first.
Under the Public Information Act, before information may be released, all information that identifies individuals must be removed.
Examples of identifiers include: name, date of birth, social security numbers, beneficiary numbers, and fax numbers.
Under the Texas Identity Theft Act sensitive personal information means a first name, or first initial and last name, in combination with any or one of the following: social security number, driver's license number, or account numbers.
AES worker has graciously allowed a family friend's daughter to stay at her house for two weeks. After the daughter moves out, she comes to the AES office and asks worker to help her complete an application for assistance. Worker agrees and enters the data into the TIERS system and completes the in person interview. Is this a conflict of interest for the worker?
Yes.
AES 5.25.18 Memo on Policy for Systems Access and Employee Cases states, "Staff should not process, access case information, or perform any system inquiry without a business need; including cases involving a friend, relative (by blood or marriage), roommate, dating companion, co-worker, or supervisor."
The HHS Ethics Policy states "a conflict of interest exists when an employee's private interest conflicts or interferes with their ability to perform their public duties. For example: using or attempting to use an HHS position for advantage in a personal matter; or accepting a gift, service, job or activity that could appear to influence job performance or disclose confidential information."
An HHSC employee receives $10 cash that accompanied a subpoena to appear as a witness in a court proceeding. If the employee responds to the request and appears in court to testify as a witness in an official agency capacity, can the employee keep the $10?
No.
HHS Ethics Policy specifically states, "If in responding to the legal request/order, the employee will act in the role of an employee, then the employee must give the check or other payment to the appropriate person in the employee's agency- regardless of whether the payment is payable to the employee or is in cash."
A supervisor who hires or places an individual in a position within the direct chain of command of a relative.
What is nepotism?
You receive a call from the local police department asking you for video tape footage from the lobby of your local AES office for a specific date. They are looking for a suspect they have reason to believe visited the office that day. The suspect is a person of interest in a case not related to the agency. Do you give the footage over?
Since the video only shows the faces of individuals in a public place, and does not identify them by name, producing the video footage is permissible to law enforcement in the course of their official function.
District Attorney properly serves a subpoena request asking for any and all records on 10 individuals named on a defendant's witness list. You assume they are looking for character evidence in preparation for trial. You should produce the records. True or False?
False.
This request could be considered a 'fishing expedition' and an overly broad and unduly burdensome request protected by privilege under the Texas Human Resources Code Section 12.003 and 21.012.
You have been asked to attend a seminar put on by the Elder Law bar association and co-sponsored by a number of nursing home facilities. You attend and see a number of attorneys you know who work in both the private and public sector. You are given drinks, food, and even win a $50 gift card door prize.
Can you accept the food, drinks and $50 gift card?
Yes.
HHS Ethics Policy has a food and entertainment exception to prohibitions on receiving benefits that states, "If the sponsors are inviting the public and private sector employees for the purposes of an educational exchange, the employees may attend and accept snacks, small promotional items, and randomly drawn door prizes because this falls within the Food and Entertainment Exception, i.e. as a widely attended gathering of more than 25 people related to their work experience."
Legal staff are holding a training conference in the near future and are in need of door prizes to hand out to attendees. Some of the conference organizers have approached local businesses soliciting for gift cards. Is this practice ethical?
No.
Soliciting for gift cards is equivalent to cash and is prohibited by Texas AG General Opinion GA-0527 (2007) irrespective of dollar amount.
H.I.P.A.A.
Health Insurance Portability and Accountability Act
Law enforcement calls your office in reference to a missing child report. Police officer says they have reason to believe the 16 year old missing child is pregnant and has applied for benefits with HHSC. Police officer asks you to perform a search and determine if the child has applied, and if so, what address was provided in the application. The child is listed on the National Center for Exploited Children website as a runaway. What if anything do you do?
Since the law enforcement agent requested the search in the course of his official duties as a public servant, performing the search is permissible.
A privacy concern does arise should you provide the requested address, but one could argue the safety risk outweighs the privacy concern.
You send MEPD worker a series of emails asking for clarification on an annuity you are working to provide a legal opinion on. In that email chain you comment on an elder lawyer's questionable tactics to get his client qualified for long-term Medicaid. After some back and forth you provide your legal opinion about the annuity. The email chain along with other relevant documents gets put in the appeal record and produced to the client and their elder law attorney for the fair hearing. Should the email chain have been produced to the outside parties? If so, should it have been redacted?
The final email providing the legal opinion on the annuity should be produced to substantiate/explain the agency's action but the previous emails, including the comment on the attorney's tactics should not be included as they could be considered attorney work product.
AES worker meets client during an in person interview for SNAP benefits and hits it off. Worker completes the interview and closes the case. Worker then gives client her personal phone number after the client asked for it. A week after their meeting, client calls worker and they go out on a date. Is this a conflict of interest for the worker?
Yes if her attraction to the client affected her ability to properly perform her job duties. An appearance of impropriety should also be explored.
The HHS Ethics Policy states "a conflict of interest exists when an employee's private interest conflicts or interferes with their ability to perform their public duties."
Work rule 18 also prohibits relationships with clients that would impair objectivity in performing agency employee duties.
A local dentist office has a representative in the lobby of an HHSC building handing out flyers to Medicaid clients as they leave the building notifying them the dentist accepts Medicaid as payment and soliciting for their business. What should HHSC do?
Ask them to leave the premises. This gives the appearance of impropriety and preferential treatment to the dentist office.
HHS Ethics Policy states, "Employees shall protect and conserve state property and shall not use it for other than authorized activities. Employees shall act impartially and not give inappropriate preferential treatment to any private organization or individual."
Any set of circumstances that may compromise or appear to compromise the fairness, independence, objectivity or impartiality of a public servant.
What is Conflict of Interest?
In the lobby of an AES office a fight breaks out between clients. They are arrested and charges are filed. District attorney calls you asking for a list of other clients present in the lobby at the time of the assault who may be witnesses. Do you produce the list?
It could be argued that the names of individuals present in our lobby is privileged information.
Texas Human Resources Code §§ 12.003 and 21.012 specifically prohibited HHSC from revealing information regarding its public-assistance clients, included but not limited to their names.
Married couple has a disabled child and has applied for Medicaid benefits for the child. The couple is denied benefits as over the income limit. The couple consults an attorney and is advised they can get divorced and then the wife can reapply for benefits as a non-working single to get qualified for benefits for the child. If the couple wants to divorce to obtain benefits but does not intend to dissolve the marriage, what ethical issues arise for the attorney?
Filing for divorce means the marriage is "insupportable because of discord or conflict of personalities between the spouses that destroys the legitimate ends of the marriage relationship and prevents any reasonable expectation of reconciliation." If the attorney cannot in good faith substantiate this claim then it is unethical to file the divorce petition.
As a public service you assist your local bar association with a free legal clinic helping the public file for divorce. In the midst of interviewing and assisting a client you discover they are a Medicaid recipient. Is it a conflict of interest for you to continue to assist this client?
No unless you as their legal representative in their divorce proceeding are placed in a position that conflicts, or appears to conflict, with agency duties.
HHSC Human Resources Manual provides "that an HHS employee is required to decline simultaneous outside employment or volunteer activities that might threaten the ability of the employee to perform their HHS duties fairly, honestly, and efficiently."
Note: HHS Ethics Policy requires prior approval before an HHS employee may engage in non-agency activity, which includes volunteer activity, that may conflict, or appear to conflict with, the employee's agency duties.
Rules 1.10 of the Texas Disciplinary Rules of Professional Conduct states, "Except as law may otherwise expressly permit, a lawyer shall not represent a private client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency consents after consultation. Except as law may otherwise expressly permit, a lawyer having information that the lawyer knows or should know is confidential government information about a person or other legal entity acquired when the lawyer was a public officer or employee may not represent a private client whose interests are adverse to that person or legal entity."
A local hospital has asked to place a food drive collection basket in the client lobby of an HHSC leased office space. They would also like to put up flyers around the office space to draw attention to the food drive. What should HHSC do?
Decline the request from the hospital.
Although a commendable endeavor and not direct solicitation for the clients or employees to contribute, there could be an appearance of preferential treatment to this hospital and opens the door to other non-profits requesting the same treatment.
(See HHS Ethics Policy Standards of Ethical Conduct for Employees)
The process for employees to resolve issues regarding an act or event the employee:
1) believes is objectionable, but not discriminatory; and
2) affects the terms or conditions of his or her employment.
What is an Administrative Complaint?
Human Resources Guidance Handbook, Chapter 1, I., Administrative Complaints.
Elder law attorney calls you and asks you about the Medicaid Estate Recovery Program. He says he has a client that died two months ago that potentially has a MERP claim against him but has not received any documentation saying the agency intends to file a MERP claim on the estate. He tells you he is in the process of probating the will and making distributions to the beneficiaries. What if anything can you ethically advise him?
You should advise him to contact the MERP office about his specific case and that you cannot advise him on what to do with his client's estate. If he refuses to call MERP then you should notify MERP about the client's death.
It is advisable to notify him the estate recovery contractor will send a Notice of Intent to File a Claim (NOI) within 30 days of when they receive notice of the death of a Medicaid recipient and they can still file their notice of claim for this client should they not be aware of the death yet.
AES worker loves Facebook. She posts her every thought, feeling, and impression on the website. On Monday morning at 11:30am she posted from her cell phone "Just had another SNAP client in my office boohooing about why they need benefits. #denied #crybabies" Does this remark by an employee violate agency policy?
Yes.
During business hours the employee discloses she is an agency employee, she denied a client for SNAP benefits, and generally exhibits a negative attitude about client.
HR Manual on Personal Use of Social Media states, "Regardless of when the social media websites are accessed (during or after work hours), employees who engage in non-business communications using social media websites and services on personal devices must: keep all HHS information and all information obtained as an HHS employee confidential, except as otherwise required by law."
Work rule 20 states, "keep all HHS information and all information obtained as an HHS employee confidential, except as otherwise required by law."
Work rule 6 states, "exhibit courtesy and respect in all interactions with clients, peers, coworkers, vendors, contractors, and any other people employees meet in the course of their jobs."
HHSC worker has exhausted all available leave to her, does not meet FMLA requirements, and has been denied extended sick leave and sick leave pool. While at lunch with her coworker she pours out her heart about the difficult situation she is in with her sick children. She does not ask the coworker to donate sick leave to her but she clearly expresses her need for additional leave and says "I wish I had good friends who would help in times of need". Is this ethical behavior?
It is not a conflict of interest but does give the appearance of impropriety.
The appearance of impropriety occurs when "reasonable minds, with knowledge of all the relevant circumstances disclosed by a reasonable inquiry, would conclude that honesty, integrity, impartiality, or temperament is impaired."
HR Handbook policy on Donated Sick Leave states, "Any attempt to coerce or otherwise persuade an employee to donate sick leave is prohibited. Employees must not provide or receive any compensation, gift, or other benefit in exchange for a sick leave donation.".
A building management company furnishes a holiday lunch to all it's tenants for Thanksgiving on an annual basis. HHSC AES staff leases space in the building along with other non-agency businesses. Is AES staff prohibited from attending?
No.
There could be an argument made that there is an appearance of impropriety but since the management company is providing lunch to all building tenants and not just HHSC, OES staff does not make decisions on building leases, and the lunch does not exceed $50 in value there is no prohibition in the HHS Ethics Policy from attending.
H.S.T.A.
What is Human Services Trade Association?
Human Resources Guidance Handbook Chapter 1, Section D.12
An individual may not be employed by HHSC in a position that is exempt from the Fair Labor Standards Act (FLSA), based on an executive, administrative, or professional exemption, if: