Advisory Opinion No. 95-12

Re: Barry G. Hittner

This advisory opinion is addressed to Barry Hittner, Director of the Rhode Island Department of Business Regulation. Dr. Hittner has advised the Rhode Island Ethics Commission that his wife, Kathleen C. Hittner, M.D., is a Board certified anesthesiologist who is an officer and employee of University Anesthesiologists, Inc. Her employer has contractual commitments to furnish all anesthesia services to two hospitals, the Miriam Hospital and Roger Williams General Hospital, both located within the State of Rhode Island.

Mr. Hittner advises the Ethics Commission that the insurance division of the Department of Business Regulation has among its responsibilities the obligation to review and approve or disapprove rate filings made on behalf of insurance and health maintenance organizations doing business in Rhode Island and other third-party providers of medical, dental and related health care insurance. These filings may establish rates to be paid which might include rates by insurers for services to be performed by an anesthesiologist either directly or through arrangements with a hospital located within the state. In addition, insurers which issue medical malpractice insurance may establish rates through the Department of Business Regulation relating to anesthesiologists and hospitals within the state. As Director of the Department of Business Regulation, Mr. Hittner's responsibilities include discretion to order rate hearings with respect to any particular rate filing request to appoint a qualified hearing officer and to enter an order approving or rejecting the recommendations of the hearing officer. Mr. Hittner indicates that he would not appoint himself as hearing officer with respect to the rate filing of any insurer.

The insurance division of the Department of Business Regulation also has among its responsibilities the obligation to review and approve or disapprove initial license applications and applications for material modification as to the operations of health maintenance organizations. As in the case of insurance rates, Mr. Hittner advises that he has authority to order a hearing, appoint a hearing officer and approve or reject recommendations of the hearing officer. He advises he does not intend to serve as hearing officer with respect to any such application by any HMO.

Mr. Hittner requests advice from the Commission as to whether he may participate in such matters while his wife is simultaneously engaged as an officer and principal in the private practice of anesthesiology and with contractual relationships with two hospitals located within the State of Rhode Island.

While we recognize that Mr. Hittner's wife may receive a residual benefit or detriment from his activities as the Director of the Department of Business Regulation in connection with rate filing and other decisions relating to medical institutions and insurers within the State of Rhode Island, we believe that such benefit or detriment received by Dr. Hittner would not represent an interest in conflict with the discharge of Mr. Hittner's duties in the public interest as defined under R.I.G.L. Section 36-14-7(a). We specifically distinguish Mr. Hittner's general activities as Director of the Department of Business Regulation regarding health insurance matters, as compared to a particular application limited to consideration of rates or other matters which have a significant and direct affect upon Mr. Hittner's wife's medical practice. By way of example, overall rate modifications with insignificant changes in payments to anesthesiologists would not trigger any necessity for Mr. Hittner to recuse in connection with

said matters. However, a particular filing focused on increases or decreases in payments made to anesthesiolo-gists would, in our opinion, represent an interest in substantial conflict of the proper discharge of duties in the public interest mandating notice and recusal.

We advise Mr. Hittner to review each matter on a case-by-case basis and, seek further advice from this Commission.

Keywords

Class Exception

Nepotism

Family: Private Employer

Regulatory Decisions