| Date: | 12/28/1983 |
|---|---|
| Organization: | State Ethics Commission |
A part-time consulting physician to the Disability Determination Services branch of the Massachusetts Rehabilitation Commission may lease office space to consultative physicians who have been assigned by MRC to perform examinations or tests without violating §§ 4, 7 and 23 of the conflict of interest law.
You are a part-time consulting physician to the Disability Determination Services branch of the Massachusetts Rehabilitation Commission (MRC). In that capacity you review applications for disability which have been referred to MRC by the United States Social Security Administration. The referrals are initially assigned to an MRC disability determination examiner who utilizes the services of a consulting physician in determining the completeness of the medical documentation. In those cases where further documentation is necessary, the consulting physician will authorize appropriate medical consultative examinations and tests. The authorization does not include specifying who will conduct the examination or the location. Following the consulting physician's authorization, the MRC Placement Department will review a standing list of physicians who are qualified to provide the appropriate medical consultative examinations and tests in the applicant's geographic area. Following the Placement Departments assignment and examination and testing of the applicant, the physician will submit a report to the original Disability Determination examiner. After review of the report, the examiner and consulting physician will determine whether the applicant has satisfied the criteria for disability and will submit their determination to the Social Security Administration.
In addition to your consulting physician position with MRC, you are a private physician and have an office located in ABC. You are interested in leasing your office space on an occasional basis to a medical specialist who would perform consultative examinations for MRC in the ABC area. You state that you have no official responsibility or supervisory authority over consultative physicians at MRC and have no authority to assign a particular physician to an application or to recommend that the MRC Placement Department do so.
Does G.L. c. 268A permit you to lease your office space to consultative physicians who have been assigned by MRC to perform examinations or tests?
Yes, subject to certain conditions.
As a consulting physician to MRC, you are a state employee for the purposes of G.L. c. 268A, § 1(q). In view of your part-time status, you qualify for classification as a "special state employee" under § 1(o)[1] and would be subject to certain less restrictive provisions in G.L. c. 268A in addition to other prohibitions which you share equally with full-time state employees.
Under this section, you are prohibited from receiving compensation from non-state parties in relation to any "particular matter" in which the commonwealth or a state agency is a party or has a direct and substantial interest. As a special state employee the prohibitions of § 4 will apply only to those matters which you have participated in or have had official responsibility for or which are pending in MRC. On the basis of the information which you have provided, your receipt of rental income from consultative physicians who conducts examinations and tests for MRC will not violate § 4. Rental income does not constitute compensation as that term is defined in G.L. c. 268A, § 1(a). See EC-COI-82-85. Therefore, as long as the income you receive is limited to the use of your office space and is not for any personal services which you would provide, your receipt of rental income will be permissible under § 4.
As a special state employee, you are also subject to the restrictions of G.L. c. 268A, § 7 which prohibits you from having a financial interest in contracts made by the MRC.[2] Your receipt of rental income from consultative physicians would not be considered a financial interest in an MRC contract for the purposes of § 7. While it is true that the consultative physicians will receive a standard fee from MRC for their services, the rental fee which you charge is independent of either the MRC fee schedule or the physician's receipt of MRC fee payments and is the same fee which you charge to any physician who wishes to use your office space. Moreover, the MRC contract does not specify any particular requirements for space, equipment or supplies in a consultative examination and leaves that determination to the discretion of the consultative physician. Nor is this an appropriate situation under which the Commission would attribute the consultative physician's financial interest in the MRC contract to you. Compare, EC-COI-83-125, 83-37. As long as your income from consultative physicians does not include your performing services for MRC, see Attorney General Conflict Opinion Nos. 206, 238, or leasing your office space directly with MRC, you would not violate § 7.
Under this section you are prohibited, in relevant part, from using your official position to secure unwarranted privileges or exemptions for yourself or others and from, by your conduct, giving reasonable basis for the impression that any party can unduly enjoy your favor in the performance of your official duties. See G.L. c. 268A, § 23 ¶ 2(2), (3). On the basis of the facts as you have described them, your leasing of office space to MRC consultative physicians would not violate the above-described provisions of § 23. This result will continue to apply as long as you do not exercise any supervisory MRC authority over consultative physicians, and the decision to assign particular physicians is made by a department of the MRC which is independent of your authority. On the other hand, the prohibitions of § 23 would apply if you were to review as a consulting physician a report submitted by a consultative physician who had leased your office space, or if a consultative physician used your office space to conduct a medical examination on a referral which you had authorized. Moreover, concerns under § 23 (and possibly under § 7 as well) would be raised if a substantial number of the physicians on the standing list used by the MRC Placement Department or a disproportionate number of the physicians actually selected leased office space from you.
End Of Decision
