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HomeMy WebLinkAbout85-023 CwynarMr. Frank Cwynar 1073 -A Huron Drive Harrisburg, PA 17111 II. Factual Basis for Determination: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA I712O October 23, 1985 OPINION OF THE COMMISSION 85 -023 Re: Pharmacist, Utilization Review, Department of Public Welfare, Public Employee Dear Mr. Cwynar: This responds to your appeal of the Advice of Counsel (85 -568) dated August 8, 1985. I. Issue: Whether a pharmacist in the Bureau of Utilization Review within the Pennsylvania Department of Public Welfare is a public employee, within the purview of the State Ethics Act and, therefore, required to file a Statement of Financial Interests. You are currently employed by the Pennsylvania Department of Public Welfare, Bureau of Utilization Review, as a pharmacist. On July 24, 1985, you filed a financial disclosure appeal which indicated that you should not be required to file a Statement of Financial Interests as required by the State Ethics Act, in that, your responsibilities did not meet the requirements of the term public employee as defined in the Act. Specifically, you indicated that your duties should be considered "ministerial" in nature and, therefore, outside of the parameters of the Act. Your appeal was processed as a request for advice and on August 8, 1985, Advice of Counsel No. 85 -568 was issued. That advice concluded that based upon your job description and prior Commission precedent, you are a public employee within the purview of the Ethics Act and thereby required to file a Statement of Financial Interests. Mr. Frank Cwynar October 23, 1985 Page 2 On August 26, 1985, the Commission received your request that the full Commission review the Advice of Counsel. Specifically, you indicated that while your job description and position specification does set forth certain duties and responsibilities, you state that because you are supervised in the performance thereof, these duties and responsibilities are ministerial. The Commission has reviewed your job description dated September 15, 1983, regarding the position that you hold. That job description was prepared by you and indicates that you are responsible for various functions as follows: Discovering, evaluating and correcting Medical Assistance overutilization and abuse, Screens and selects providers for active review by identifying discrepanc;cs on provider invoices, SURS reports, Capital Blue Cross reports, medical records and other M.A. documents and referrals. Examines and analyzes claims, cost data, payment records, recipient profiles, contractors' field audit reports and other documentation to determine the advisability of conducting on -site reviews in areas of suspected misutilization, abuse or fraud. Contacts county assistance offices, recipients, physicians, and others to secure information in preparation for on -site reviews; documents and records findings; prepares reports and cases for possible corrective or legal action and testifies at hearings. Conducts, or participates, in on -site reviews for the purpose of examining records and administrative procedures of providers of pharmaceutical services and medical supplies. Researches, studies and evaluates the quality of services supplied by providers of outpatient services through record review, on -site review, Medical Assistance recipient interviews, and drug sample tests in order to detect overutilization, misutilization, underutilization, program abuse and fraud. Obtains and reviews provider records from microfilm /microfiche to determine if there is evidence of the substitution of brand -name drugs for generic drugs; also compares invoices from local warehouses and direct accounts to determine whether generic drugs are substituted for brand name and checks if the Department has been billed for the brand -name drug. Attends and participates in evidentiary meetings with division chief, section chief and legal counsel to discuss the provider case histories and case strategy. Mr. Frank Cwynar October 23, 1985 Page 3 Corresponds with providers, drug companies, licensing boards, Medicaid Fraud Control Unit and other state agencies to develop case files on individual providers; makes referrals on case information to other state agencies when applicable. Assists in communications with other involved state and federal agencies to facilitate exchange of information and coordination of activities. Prepares reports delineating reasons for review, methodology, findings, recommendations, violations of M.A. regulations, and other pertinent data for Preliminary Review, Full -Scale Evaluation, and charge letter. Attends and testifies as a witness (when serving as a case coordinator) in cases involving outpatient providers at hearings in the Commonwealth Court and in the Federal Court. Researches special projects involving analysis of Program Regulations, statistical printouts or discussion with departmental staff; prepares reports and makes recommendations regarding special projects. Participates in the development and application of standards, policies and procedures pertaining to the provision of outpatient services under the Medical Assistance Program. Prepares statistical data -and reports on providers for the Secretary, Deputy Secretary, Bureau Chief, and any other divisions or agencies involved in the delivery of Medical Assistance. Provides consultation and direction to attorneys, the fiscal intermediary, other governmental and private agencies and other departmental staff in providing information related to this area of the Medical Assistance Program. Recommends policy and procedural changes in an effort to increase program efficiency. Recommends corrective action in cases where the provider is out of compliance with existing standards, policy, rules and regulations; prepares documentation as a basis for the restriction or removal of clients and providers for participation in the Medical Assistance Program. Monitors the field audit function of the fiscal intermediary in relation to the utilization of pharmaceutical services, drugs and medical supplies. Assists in developing a cost - containment and control program for drugs and pharmaceuticals. Mr. Frank Cwynar October 23, 1985 Page 4 Participates in developing reporting systems and procedures for the storage, retrieval, and evaluation of the pharmaceutical services and medical supplies provided through the Medical Assistance Program. Coordi nates all aspects of the Medi cal Supply Program, including the determination of product compensability. Assists the consultants in review Jf medical records and other pertinent documents to establish case files when necessary; refers questionable medical records to medical consultants to use during recipient examinations; photographs recipients for documentation. Refers case information to other sections where applicable. The Advice of Counsel that was issued outlined most, i f not all , of the foregoing duties. In your most recent communication, you assert that while you do, in fact, perform these functions, that you are supervised in these duties and that they are, therefore, ministerial. III. Discussion: Initially, the Commission notes that your appeal of the instant advice was filed with the Commission on August 8, 1985. This was eighteen (18) days after the issuance and service-of that advice. The regulations of the Commission provide that an appeal from such an advice shall be made within fifteen (15) days of the service of the advice. As such, we believe that your appeal has not been timely filed. Additionally, we believe that the findings and conclusions as set forth in that advice were correct. As set forth in that advice, the Ethics Act provides that: Section 2. Definitions. "Public employee." Any individual employed by the Commonwealth or a political subdivision who is responsible for taking or recommending official action of a nonministerial nature with regard to: (1) contracting or procurement; (2) administering or monitoring grants or subs idi es; (3) planning or zoning; Mr. Frank Cwynar October 23, 1985 Page 5 (4) inspecting, licensing, regulating or auditing any person; or (5) any other activity where the official action has an economic impact of greater than a de minimus nature on the interests of any person. "Public employee" shall not include individuals who are employed by the State or any political subdivision thereof in teaching as distinguished from administrative duties. 65 P.S. 402. The regulations of the Ethics Commission further provide that individuals are considered public employees where they perform their duties in the field without on -site supervision, or where they have the authority to forward or stop recommendations from being processed, and where such recommendations are an inherent and recurring part of their position, and where such activities affect organizations other than the employee's own. See 51 Pa. Code §1.1. The crucial element, of course, in this evaluation is subsection (5) of the definition of public employee. In construing the parameters of this provision, this Commission is authorized to construe the coverage of the law broadly thereby making exceptions to the filing requirements narrow. See Phillips v. State Ethics Commission, 470 A.2d 659, (1984). In addition thereto, the Commission has been authorized to employ an objective standard such as the job description or job classification in determining whether an individual is, in fact, a public employee. See Phillips, supra at 660. In light of the foregoing, we must focus on the job itself and not on the individual and variable functions of the particular employee occupying the position. See Mummau v. Ranck, 531 F. Supp. 402 (E.D. Pa. 1982) citing Branti v. Finkle, 445 U.S. 507 at 518, 100 S. Ct. at 1294, 63 L. Ed 2d 574 (1980 . There is no doubt when one reviews the functions of one in your position, that you are responsible for activity that has an economic impact of greater than a de minimus nature on the interest of individuals. In part, you have wide latitude as per your job description on recommending and formulating policy and information relating to the Medical Assistance Program. You, by way of your duties, have authority to recommend the removal of persons from the program. You assist in developing a cost containment and control program for drugs and pharmaceuticals. We will not repeat all of your functions but a review of these duties as previously outlined, clearly reflect that you fall within the definition of public employee. Mr. Frank Cwynar October 23, 1985 Page 6 Indeed, in your letter of August 28, 1985, you acknowledge that if one must in truth focus on the job itself and the various functions thereof, "then I have been a public employee since December 19, 1977," we agree. Finally, with reference to your statement that because you have a supervisor, your functions are ministerial, we do not believe that supervision is the deciding factor. Our regulations define ministerial as follows: Section 1.1. Definitions. Ministerial actions - -- An action that a person performs in a prescribed manner in obedience to the mandate of legal authority without regard to or the exercise of the person's own judgment as to the desirability of the action being taken. 51 Pa. Code 1.1. Nonmi ni steri al actions - -- An action in which the person exercises his own judgment as to the desirability of the action taken. 51 Pa. Code 1.1. Clearly your job description evidences wide latitude in the performance of your duties. Indeed the description evidences that you prepare reports delineating your reasons for review, methodology, findings and recommendations. This clearly indicates that you have the authority to perform in a discretionary fashion. IV. Conclusion: For the foregoing reasons, you are to be considered a public employee within the purview of the State Ethics Act as a pharmacist in the Bureau of Utilization Review, Department of Public Welfare. You must, therefore, file a Statement of Financial Interests. This statement must be filed within thirty (30) days of this opinion. Pursuant to Section 7(9)(i), this opinion is a complete defense in any enforcement proceeding initiated by the Commission, and evidence of good faith conduct in any civil or criminal proceeding, providing the requestor has disclosed truthfully all the material facts and committed the acts complained of in reliance of the advice given. This letter is a public record and will be made available as such. P1r. Frank Cwynar October 23, 1985 Page 7 Finally, any person may request within 15 days of service of the opinion that the Commission reconsider its opinion. The person requesting reconside- ration should present a detailed explanation setting forth the reasons why the opinion requires reconsideration. JJC /sfb By the Co ission, HERB 'T B. CONNER Chai rman