2013 Federal Health Law Course Legal Issues in Dealing With Non-Federal Entities

1. 2013 Federal Health Law CourseLegal Issues in Dealing With Non-Federal Entities

2. Agenda • Basic Principles • Non-Federal Entities • Travel Payments from a Non-Federal Source • Teaching, Speaking & Writing • Expert Witness • Gifts

3. Basic Principles • Medical personnel are employees and are subject to all ethics laws and regulations • These include: • Criminal Statutes in 18 U.S.C. §§ 201-209 • 14 ethical principles in E.O. 12674 (public service is a public trust) • Standards of Conduct for Employees of the Executive Branch (5 CFR 2635) • Supplemental Standards of Ethical Conduct for Employees of the Department of Defense • DoD 5500.07-R (Joint Ethics Regulation)

4. Non-Federal Entities (NFEs) • What is an NFE? • Any organization or individual other than the U.S. Government • Charities and not-for-profit groups • Foreign/state/local governments • Professional Associations • Commercial entities • Employee groups or organizations

5. Non-Federal Entities (NFEs) • What do NFEs Want? • Government property (things) • Government personnel (time) • Official endorsement • Official sanction (e.g., use of seals/emblems) • Nonpublic information • Access to senior officials

6. NFEs: Authority to Render Support Use of Government Resources Government resources, time or equipment may not be used for unauthorized purposes 31 U.S.C. § 1301 (Purpose Statute) Fiscal teaching point: “It’s the taxpayers money, stupid”

7. NFEs: Attending Meetings • Official capacity • Supervisors may authorize attendance in an official capacity at Government expense when it serves an official purpose • No cost if also a legitimate purpose • Be careful where attendance is for a limited audience or provides special access • Personal Capacity • must be clear employee is attending in a personal capacity

8. NFEs: Represent Agency • Official Capacity • Serving on Boards, Councils, etc. • If fiduciary position, presents conflicting duty of loyalty (18 U.S.C. § 208) • Solutions • Regulatory exemption for non-profits (5 C.F.R. 2640.203(m)) • Individual waiver under 18 U.S.C. § 208(b) • Appointment as Official Liaison (JER 3-201) • Represent Agency’s interests to the NFE

9. NFEs: Official Liaison • No fiduciary duty so no conflict of interest concern • Appointed by head of DoD component command or organization when determined that there is a continuing and significant DoD interest to be served by the representation • Discuss mutual interests and make non-binding recommendations • May not participate in the day-to-day management of the NFE • Limited personal liability • Official duty, so • Official time and resources authorized • May use official title and position

10. NFEs: Serving in a Personal Capacity • When holding a position of trust • Imputed interest under 18 U.S.C. § 208 (disqualify) • When an active participant • Covered relationship under 5 C.F.R. 2635.502 (disqualify) • No representation of NFE to the Federal Government • May violates 18 U.S.C. §§ 203 or 205 • May not solicit subordinates or prohibited sources on behalf of the NFE

11. NFEs: Serving in Personal Capacity No preferential treatment No official endorsement No use of official title/position/authority No use of Government resources No disclosure of nonpublic information Potential personal liability Disclosure of position to supervisor and on financial disclosure reports

12. NFEs: Professional Associations • Supervisors may grant excused absence to participate in activities of non-profit professional associations and learned societies (JER 3-300.b) • Reasonable time • Use of equipment and support services to prepare papers if: • Relates to official duties • Benefits agency • No interference with official duties • Compensation barred by 5 C.F.R. 26354.807

13. NFEs: Advising • Official capacity • Generally, Government officials DO NOT advise NFEs • Conflicts of interest • Preferential treatment • Nonpublic information • User groups/customer panels • Include consultation in the contract if needed for the benefit of the Government

14. NFEs: Advising Personal capacity Act exclusively outside the scope of their official duties Strongly discourage advising Government contractors Academic/professional associations may be okay

15. NFEs: Professional/Standard Setting • Official capacity • Head of DoD organization may authorize active participation • Must concern the mission • Vote but not manage • Personal capacity - act exclusively outside the scope of their official duties

16. NFEs: Management • Official capacity • Federal Government officials are generally prohibited from managing or serving in a position of trust with an NFE • Conflict of interest (18 U.S.C. § 208) • Fiduciary duty to NFE • Confused allegiance/public • Only with statutory authority (10 U.S.C. 1033(b) and 1589(b)), waiver or regulatory exemption • Personal Capacity • Act exclusively in personal capacity • Policy restrictions for FO/GO serving on boards of defense contractors or entities that focus business on military personnel

17. NFEs: Authorized Support • Generally prohibited • May not use Government resources, time, equipment for other than official or authorized purposes • No preferential treatment • No endorsement • Improper use of appropriated • But often authorized by statute or implied by Congressional funding • Carefully examine specific statutory for scope of authorized support

18. NFEs: Support Events • Speakers, facilities, people, and stuff • Generally okay if within proper limits • Co-sponsorship (JER 3-206) • Logistical support (JER 3-211) • Conferences – “Danger Will Robinson” • Follow OPM and SECDEF guidance on approvals and limitations

19. NFEs: Endorsement • May not use official title, position, organization name or other authority to endorse NFE, event, product or service • “Know it when you see it” • Allowed when authorized by statute or documenting compliance with agency standards or pursuant to agency program of recognition

20. Travel Payments from a Non-Federal Source • Rule – Agencies may accept payment from a non-Federal source for travel related expenses in connection with an employee’s attendance at a meeting or similar function related to his official duties • 31 U.S.C. § 1353 • 41 C.F.R. Chapter 304 • JER Section 4-101 • Other agency gift acceptance authorities (10 U.S.C. § 2601, 5 U.S.C. § 7342, and 5 U.S.C. § 4111) may not be used if 31 U.S.C. § 1353 is applicable

21. Travel Payments from a Non-Federal Source • Conditions for acceptance – all conditions must be met! • Attendance at a meeting or similar function that is related to the employee’s official duties • Function takes place away from duty station (travel status) • Employee attends in an official capacity (not a WAG) • Donor not disqualified on conflict of interest grounds • Acceptance approved (generally) in advance • Gift may not be solicited

22. Travel Payments from a Non-Federal Source • “Meeting or similar function” includes: conferences, seminars, speaking engagements, symposia, training courses, award programs and other similar events sponsored or co-sponsored by a Non-Federal source • Excluded are: • Meetings or events required to carry out an agency’s mission (inspection, audit, etc.) • Promotional vendor training or other meetings held for the primary purpose of marketing products or services

23. Travel Payments from a Non-Federal Source • Miscellaneous Items: • Travel on commercial air • Spousal travel • Payments in excess of per diem limits • Payment in-kind or reimbursement to agency (no cash or payment to employee) • Reporting (semi-annual report to OGE) for gifts > $250 • Use may be limited by DoD policy during sequestration or shutdown

24. Teaching, Speaking and Writing • 5 C.F.R. 2635.807 • An employee may not receive compensation for teaching, speaking, or writing (TSW) that relates to the employee’s official duties • Relates to official duties if: • Undertaken as part of official duties • Invitation extended primarily because of employee’s official position rather than expertise • Invitation extended by person whose interests may be affected by employee’s duty performance • TSW relies significantly on nonpublic information • TSW deals in significant part with duties within last year or ongoing or announced programs or operations

25. Teaching, Speaking and Writing • Compensation ban does not apply to TSW on a subject within the employee’s discipline or general area of expertise based on education or experience • Compensation ban does not apply to teaching a course requiring multiple presentations by the employee if offered as part of (1) the regularly established curriculum of an institution of higher education, elementary school, or secondary school or (2) a program of education or training sponsored and funded by the Federal government or a state or local government • Compensation does not include: • Items that could be accepted from prohibited sources under the gift rules • Transportation, meals or lodging associated with the activity

26. Teaching, Speaking and Writing • DoD regulations may require employees to submit speech or writing for policy and security reviews (See DoDD 5230.09 and DoDI 5230.29) • Employee may not use or permit the use of his official title or position in connection with outside TSW except: • As part of biographical data and provided it is given no more prominence than other significant biographical details • As part of an article published ion a scientific or professional journal and accompanied by a reasonably prominent disclaimer • DoD employees must include a disclaimer where rank or official title/position is used and TSW deals in significant part with ongoing programs or operations (JER 2-207)

27. Expert Testimony • 5 C.F.R. 2635.805 • Employee may not appear as an expert witness (with or without compensation), other than on behalf of the U.S., in a proceeding before a Federal court or agency in which the U.S. has a direct and substantial interest • Employee may testify when authorized by the DAEO after a determination that the: • Employee’s service as an expert witness is in the interest of the U.S. or • The subject matter of the testimony is unrelated to the employee’s official duties • This does not preclude the employee from serving as a fact witness when subpoenaed by appropriate authority

28. Gifts • Gifts to enlisted personnel • SECDEF Memo of May 16, 2013 waived application of standards of conduct/JER for gifts to E-6 and below from charitable and veterans service tax-exempt organizations as defined by 26 U.S.C. § 501(c)(3), (19) and (23) • No cash, no solicitation, no intent to influence, no supplementation of salary • 10 U.S.C. 2601(b) – agency authority to accept gifts, including services, for benefit of member of the armed forces, DoD civilians, dependents and survivors, injured in line of duty • 10 U.S.C. 2601a – authority for “covered” members, civilians, family members, and survivors to accept gifts from outside organizations • Replaces authority implemented in JER 3-400 to 406

29. Conclusion QUESTIONS