Advisory Opinion No. 96-33

Re: Maureen H. Aveno

A. QUESTION PRESENTED

The Administrator of the Medical Advisory Board of the Workers' Compensation Court requests an advisory opinion as to whether its members may consider or vote on the approval of a preferred provider network (PPN) program submitted by a contributing employer if either (a) the member agreed, when asked by the employer submitting the PPN, to be placed on the PPN; (b) the member refused, when asked by the employer submitting the PPN, to be placed on the PPN; or (c) the employer submitting the PPN did not ask the member to be placed on the PPN.

B. SUMMARY

It is the opinion of the Rhode Island Ethics Commission that (a) the Code of Ethics prohibits a member of the Medical Advisory Board of the Workers' Compensation Court from considering whether to approve a preferred provider network (PPN) if that member, a business associate, or his or her employer or family member (if any) appears on the PPN since his or her participation would trigger the prohibitions set forth in R.I. Gen. Laws §§ 36-14-7(a) and 36-14-5(d); (b) the Code of Ethics would not prohibit a member from considering a PPN if the member, a business associate, employer or family member, are not included on the list or chose not to be included on the list since he or she would not have a financial interest in this list which would implicate the prohibitions set forth in R.I. Gen. Laws §§ 36-14-7(a) and 36-14-5(d).

C. DISCUSSION

1. Facts

The Medical Advisory Board of the Workers' Compensation Court ("Board") is comprised of ten physicians and a physical therapist appointed by the Chief Justice of the Workers' Compensation Court. (More specifically, R.I. Gen. Laws § 28-30-22 requires that the Board contain the following specialties: one orthopedic surgeon; one neurologist; one neurosurgeon; one physiatrist; one chiropractor; one physical therapist; one internist; one psychiatrist or psychologist; and three ad hoc physician members.) See R.I. Gen. Laws § 28-30-22. One of the duties of the Board is to approve preferred provider networks (PPN), a list of health care providers submitted by an insured or self-insured employer or insured from which an injured employee must chose if he or she desires to change his or her initial health care provider. (An injured worker has the right to select his or her initial health care provided. However, if the employee wishes to change providers, he or she must select a new provided from a PPN if his or her employer has filed a PPN approved by the Board with the Director of Business Regulation. See R.I. Gen. Laws § 28-33-8. Within a PPN, the preparing entity must list (a) the names, business addresses, and telephone number of each health care provider, listed by category or specialty; (b) if the health care provider is employed by or under contract with the insurer, self-insurer, or group self-insurer, the nature of the contract or agreement; (c) the geographical areas proposed to be covered by the arrangement as it relates to the facility operated by the employer; (d) a demographic page showing what percentage of employees live in what communities; and (e) a description of the types and quantity of injuries during the past two years.) The entity submitting the PPN decides what physicians and therapists are to be included on this list. A physician or therapist, however, may request the preparing entity to be included on this list.

When reviewing a PPN, the Board considers whether the PPN is geographically diverse, has a significant number of choices, and complies with any specific contractual requirements. The Board can require the preparing entity to make specific changes with the list. To be approved, the PPN must offer a "sufficiently wide selection of qualified physicians and other appropriate health care providers in the various fields to allow adequate choice to the injured worker and with the assurance that the physicians/health care providers will be readily available to provide the service required." See Preferred Provider Network Filing Procedure Rules. The Board approves a PPN by a majority vote.

Given that the doctors and physical therapist on the Board may be listed in a PPN, the Petitioner seeks guidance as to whether a member may participate in the Board's deliberations regarding a submitted PPN if (a) the member agreed, when asked by the employer submitting the PPN, to be placed in the PPN; (b) the member refused, when asked by the employer submitting the PPN, to be placed in the PPN; or (c) the employer submitting the PPN did not ask the member to be placed on the PPN.

2. Analysis

Under the Code of Ethics, the members of the Board may not participate in any matter in which they have an interest, financial or otherwise, which is in substantial conflict with the proper discharge of their duties in the public interest. See R.I. Gen. Laws §§ 36-14-5(a), 36-14-7(a). (Substantial conflict is defined as a "direct monetary gain" or a "direct monetary loss" that accrues, by virtue of the public official's activity, to that individual, a family member, a business associate, an employer, or any business which the public official represents. See R.I. Gen. Laws § 36-14-7(a).) Pursuant to R.I. Gen. Laws § 36-14-5(d), the members are also prohibited from using their public position or confidential information received through their position to obtain financial gain, other than that provided by law, for themselves, a business associate, or any business in which the member is employed or which the member represents.

After considering the Petitioner's request and the relevant provisions of the Code, we conclude that the Code of Ethics prohibits a member of the Board from participating in any discussions or decisions relating to a PPN if that member, a business associate, or his or her employer or family member (if any) appears on the PPN. If the member, his or her business associate, or his or her employer or family member appeared on the list, the member would have a financial interest which would trigger the prohibitions set forth in R.I. Gen. Laws §§ 36-14-7(a), and 36-14-5(d) since approval of the PPN could generate future patients. (We advise the members of the Board that, if a situation arises in which more than a majority of the Board must recuse themselves from the consideration of a PPN, the Board can request an advisory opinion pursuant to R.I. Gen. Laws § 36-14-11 seeking an exception under the "Rule of Necessity." See A.O. 92-1.) However, it is our opinion that the Code of Ethics would not prohibit a member from considering a PPN if the member, a business associate, employer or family member, are not included on the list or chose not to be included on the list since he or she would not have a financial interest in this list which would implicate the prohibitions set forth in R.I. Gen. Laws §§ 36-14-7(a) and 36-14-5(d).

Code Citations:

36-14-5(d)

36-14-7(a)

36-14-11

Related Advisory Opinions:

92-1

Keywords:

private employment