| Advisory opinion request regarding whether Oscar Diaz or HarmonIQ Health Systems Corporation, an entity in which Mr. Diaz is a principal, can negotiate and contract with a subcontractor of LSU to sublicense healthcare technology and software systems, considering the fact that Mr. Diaz, through nGENEX7, LLC, previously performed services for LSU as an independent contractor. |
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Oscar Diaz, as the General Manager/VP of nGENEX7, LLC, entered into a consulting services agreement with LSU, through its Health Care Services Division (LSU-HCSD), with an effective date of October 1, 2014, to assess the LSU Technology and determine its potential for commercialization. Pursuant to the consulting agreement, Mr. Diaz, through nGENEX7, advised LSU as to the market value of its assets, the requirements for technological integration with the state and national health informatics platform, and the steps, legal considerations and resource requirements for transferring the technologies to a commercially scalable or marketable platform. The services performed by Mr. Diaz are not statutorily-mandated and are not normally performed by employees of LSU. Additionally, no supervision of the services was performed by an LSU employee. The services were completed in mid-December, payment was received in full on or about January 13, 2015, and the consulting services agreement was non-recurring. Finally, Mr. Diaz, individually or through nGENEX7, does not have, nor is he currently seeking to obtain, any other contract with the State of Louisiana.
Oscar Diaz is also the President/Chairman, a director and intends to become a shareholder of HarmonIQ, a Louisiana corporation formed with the Secretary of State's office on December 17, 2014, to develop, license, market and support certain software applications and related technology within the healthcare industry. HarmonIQ presently has no shareholders, no employees, no financial assets, has not entered into any contracts with the State, is not currently negotiating any contracts with the State and has not made or solicited any proposals for contracts with the State.
Mr. Diaz has been informed that LSU presently intends to issue a single license for the LSU Technology to the Louisiana Health Information Technology Foundation (LaHIT), a private non-profit corporation that intends to become an LSU affiliated entity pursuant to La. R.S. 17:3390. Thereafter, LaHIT is expected to issue a single sublicense that may be subject to approval by LSU's President or Board of Supervisors. If HarmonIQ acquires the sublicense, it anticipates commercializing the LSU Technology and providing it to nongovernmental entities, including those that acquired management of the former public LSU hospitals and that have entered into agreements with LSU HCSD for the management and operation of those facilities, as well as other private and public healthcare institutions unrelated to LSU. Furthermore, HarmonIQ intends to provide, by contract with the Veterans Health Administration (VHA) and other entities that acquired management of the LSU hospitals (Private Partners), the majority of the informatics program management services that they may require in the future. However, HarmonIQ will contract for LSU HCSD to provide some informatics services required for HarmonIQ to fulfill its contracts with the VHA and Private Partners.
Finally, Oscar Diaz, along with Stan Huff of Intermountain Health Care, organized the Health Services Platform Consortium (HSPC), a private non-profit Delaware corporation, before Mr. Diaz was first engaged by LSU. The primary purposes of HSPC are to develop standards of interoperability for electronic healthcare records, to become the certifying agency for interoperable electronic healthcare record systems and to raise funds to accomplish the foregoing purposes. Membership in HSPC is voluntary and its activities are supported solely by membership dues and donations. HSPC does not enter into contracts with members or receive payment for services or goods from its members. Mr. Diaz was elected as HSPC's Chief Executive Officer by its members, which consists of approximately 130 healthcare systems, vendors, and other entities from the United States and Canada, including LSU, LaHIT, and the VHA. In his role as CEO, a position for which he does not currently receive any compensation, Mr. Diaz actively assists in contractual discussions between or among LSU, the VHA, and other parties to provide funding which, in part, ultimately may fund services to be provided by HarmonIQ to the VHA.
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La. R.S. 42:1102(18)(a) defines "public employee" to mean anyone, whether compensated or not, who is (i) an administrative officer or official of a governmental entity who is not filling an elective office; (ii) appointed by any elected official when acting in an official capacity, and the appointment is to a post or position wherein the appointee is to serve the governmental entity or an agency thereof, either as a member of the agency, or as an employee thereof; (iii) engaged in the performance of a governmental function; or (iv) under the supervision or authority of an elected official or another employee of the governmental entity.
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Adopt the proposed advisory opinion.
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| Assigned Attorney: |
Haley Williams |
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