Maintaining Ethical Integrity and Minimizing Risk in Challenging Times

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Maintaining Ethical Integrity and Minimizing
Risk in Challenging Times

• Gerald P. Koocher, PhD, ABPP
• Simmons College
• ethicsresearch.com

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Professional LiabilityClaim Trends
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Severe Claims in 2008

• 453 complaints (59 board complaints). 
• Suicide 17
• Sexual abuse 12
• Employment practices 5
• Non sexual boundary violations/multiple
  relationships  4
• Billing Impropriety 2
• Homicide by patient 1

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Common Trends Boundaries Competence

• Sex
• Suicide
• Child Custody
• Release of records
• Role confusion/conflict
• Confidentiality
• Record Keeping

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Motivational Forces

• Uncertainty
• Whats happening in my profession and the health
  care system?
• Will I get/keep a job?
• Economic insecurity
• Whats happened to my income?
• Whats happened to my savings?
• Lifestyle changes
• Will I ever retire?
• Must I return to work?
• Technological advances
• How can I keep up from a knowledge and economic
  perspective?
• Consumer demand
• Can I provide what consumers want?

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How will I respond to the stressors?

• Denial-Anger-Bargaining-Depression-Acceptance?
  (per Kübler-Ross)
• Stages of change Precontemplation
  Contemplation Preparation Action Maintenance
  ?
• (per Prochaska DiClemente)

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What are my options?

• Do nothing, things will get better.
• Change something(s) about my practice, job,
  career while maintaining my integrity and
  considering the best interest of my clients,
  patients, employees, and students.
• Innovate?
• Reinvent?
• Retire?

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Venturing into new arenas Competence is the
ethical key

• Branded Therapies
• Executive Coaching (Life Coaching)
• Forensic Practice
• Child and Geriatric Services
• Trauma Therapy
• Remote Service Delivery (telemetry)
• Rx Privileges

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Branded Therapy

• In most instances branded therapies do not have
  trademark protection and use of the term
  therapist does not require a professional
  license.

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Coaching

• Use of the term coach remains largely
  unregulated by governmental authorities and the
  mental health professions.

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Whose qualified to coach what?
Life-coaches all the rage By Karen S. Peterson,
USA TODAY Personal growth is hot. Diagnosis is
not. That is one reason America has seen a boom
in the number of people offering their services
as "life coaches."
Confessions of a Psychologist-Turned-Coachby Pat
Williams, Ed. D
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Lets do Trauma TherapyWhere did you catch your
PTSD?

• Treating depression and anxiety can seem passé

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Okay, Im going to add a skill (facet, service,
new thing) to my practice.

• How can I do it in an ethically responsible
  manner?

Trauma Therapy Coaching as examples
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Coaching Trauma Therapy as Illustrations

• How do I become an executive/organizational/perso
  nal coach
• or trauma expert?

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General ethical guidance for establishing
competence in an emerging area

• Ask an expert colleague.
• Get additional education and training if
  necessary.
• Focus on evidence based practices where they
  exist.
• Stay mindful of biases
• (e.g., I can do it because Ive been through
  it!)
• Remember you cant hide behind a new identity,
  if you cite your profession.

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The Organizational Coach

• Ino Itall, Ph.D. has a degree in counseling
  psychology and a license to practice in NE. A
  university dean hires Dr. Itall to consult on the
  political science department at a university in
  SC where faculty are feuding, because his
  experience as a psychologist in academic
  settings. Dr. Itall comes to SC and interviews
  many people on campus with a pledge of
  confidentiality and intent to coach the faculty
  on improving relationships.

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Coach Itall (continued)

• Itall then offers coaching advice that breaches
  the confidentiality of others. When challenged
  ethically, Dr. Itall responds I wasnt
  functioning as a psychologist when I did the
  report. I was acting as an organizational coach
  and the ethics code did not apply.

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One web sit of trauma experts (?) tells viewers

• We have a strong commitment to reach out to
  children consider this
• Tragically, 65 of these children have
  experienced trauma and abuse.
• 35 of our adults have experienced trauma in
  their lives.
• These numbers only represent cases that have
  been reported. (Actual data per ACF and Census
  Bureau 1.2)

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Where did the experts get their web sites
statistics ?

• National Statistics
• "... 30 to 46 percent of all children are
  sexually violated in some way before they reach
  the age of 18." Levine, P., Kline, M., (2007).
  Preventing and Healing the Sacred Wounds of
  Sexual Molestation. The Meadows Cutting Edge,
  Spring, pg. 5.
• The Meadows Cutting Edge a non peer reviewed
  newsletter cited the authors book, published by
  North Atlantic Books.

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Sources for the statistic.a North Atlantic
Books volume

• Company Profile
• Founded in 1974, North Atlantic Books has been
  located in Berkeley, California since 1977.
  North Atlantic publishes on alternative health,
  astrology, dance, martial arts, and spiritual
  titles...
• Our mission is to affect planetary consciousness,
  nurture spiritual and ecological disciplines,
  disseminate ancient wisdom, and put forth ways to
  transmute cultural dissonance and violence into
  service

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Money Matters and BarteringBusiness Meets
Multiple Role Relationships in a Bad Economy
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Common issues made worse in tough times

• Raising fees
• Extending credit
• Sliding fee scales
• Waiving co-payments
• Billing and collections
• Bartering

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Whats really important about fees?

• Inform clients about fees, billing and collection
  practices routinely at the start of a
  professional relationship.
• Repeat this information later if necessary.
• Follow the procedures you specified.

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Whats really important

• Take care to explain the nature of services
  offered, the fees to be charged, the mode of
  payment to be used, and other financial
  arrangements that might reasonably influence the
  potential clients decisions.
• Many practitioners find it useful to put such
  information in a pamphlet or hand-out for clients
  with other basic information, such as
  confidentiality and emergency coverage notices.

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Avoiding financially triggered abandonment

• Never contract for services without first
  explaining the costs to the client and mutually
  determining that the costs affordable.
• Do not mislead the client into thinking that
  insurance or other third-party coverage will bear
  the full cost of services when it seems
  reasonably clear that benefits may expire before
  the need for service ends.

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Avoiding financially triggered abandonment

• When treatment is in progress and a client
  becomes unemployed or otherwise can no longer
  pay, try to be especially sensitive to the
  clients needs.
• If you cannot realistically help a client under
  existing reimbursement restrictions, and the
  resulting process might be too disruptive, it may
  prove best to simply explain the problem and not
  take on the prospective client.
• At times it may become necessary to terminate
  care or transfer the client elsewhere over the
  long term, but avoid doing this abruptly or in
  the midst of a crisis period in the clients
  life.

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Elements of APA Ethical Code (2002)

• 3.12 Interruption of Psychological Services
• Unless otherwise covered by contract,
  psychologists make reasonable efforts to plan for
  facilitating services in the event that
  psychological services are interrupted by factors
  such as the psychologist's illness, death,
  unavailability, relocation, or retirement or by
  the clients/patients relocation or financial
  limitations.
• 10.10 Terminating Therapy
• (c) Except where precluded by the actions of
  clients/patients or third-party payors, prior to
  termination psychologists provide pretermination
  counseling and suggest alternative service
  providers as appropriate.

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Increasing fees

• Increasing fees in the course of service delivery
  poses dilemmas.
• If a commitment is made to provide consultation
  or conduct an assessment for a set fee, it should
  be honored.

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Increasing fees (continued)

• Likewise, a client who enters psychotherapy at an
  agreed-upon rate has a reasonable expectation
  that the charges will not be raised excessively.
• Once service has begun, the provider has an
  obligation to the client that must be considered.
  Aside from financial hardship issues, the
  psychologist may have acquired special influence
  with the client that should makes it difficult
  for the person to object.

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Retainers

• Some practitioners require clients to pay certain
  fees in advance of rendering services as a kind
  of retainer (e.g., in forensic cases or other
  complex assessments).
• This is an unusual practice in psychology, but
  not unethical so long as the contingencies are
  mutually agreed upon.

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Retainers (continued)

• The most common use of such advance payments
  involves relationships in which the practitioner
  is asked to hold time available on short notice
  for some reasons (as in certain types of
  corporate consulting) or when certain types of
  litigation are involved.
• Such situations require careful accounting.

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Fraud refers to intentional deception that
results in harm or injury to another.

• Four basic elements
• First, a false representation is made by one
  party, who either knows it to be false or is
  knowingly ignorant of its truth. This may be done
  by misrepresentation, deception, concealment, or
  simply nondisclosure of some key fact.

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Fraud (continued)

• Second, the misrepresenter's intent is that
  another will rely on the false representation.
• Third, the recipient of the information is
  unaware of the intended deception

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Fraud (continued)

• Fourth, the recipient of the information is
  justified in relying on or expecting the truth
  from the communicator. The resulting injury may
  be financial, physical, or emotional.

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Payment for missed appointments

• If you plan to use this policy in your practice,
  give proper advance information about this
  practice to clients and obtain their consent.
• Never bill an third-party payer for unkept
  appointments.

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Third-party Relationships

• The key to navigating these ethically
• Know and honor your contractual obligations,
  while
• informing clients and
• protecting their rights.

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Third-party Relationships

• The moral hazards of insurance
• Ex ante people dont buy it unless they expect
  to use it.
• Ex post people with insurance demand more and
  better service commensurate with coverage.
• Solutions
• Co-insurance deductibles and co-payments

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Third-party Relationships

• Disguising services not covered
• Upcoding diagnoses
• Musical chairs in family therapy
• Billing for services not rendered
• Burying the deductible
• Waiving the co-payment

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Bill Collecting Strategies
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Bill Collecting

• State and Federal laws define debtor creditor
  relationships, including
• Collection practices
• Actions of a creditors agents
• Credit policies (e.g., interest and surcharges)
• Include any such plans in the client contract or
  consent notifications.

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Bill Collecting

• HIPAA compliance essential
• Have business associate agreements
• Do not withhold medical records for non-payment
  of fees.

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Bill Collecting Strategies

• Collection agencies you retain responsibility
• Small claims court acceptable, but risky
• Best bets
• Discuss all with client in advance and ongoing.
• Do not allow significant debt accumulation.
• Consider retainer in some types of practices.

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Bartering

• Bartering is ethically permissible, but
  complicated multiple role situation.
• Establishing the value of the products/services
  poses challenges.
• Bartered products/services are taxable and
  legally reportable.
• Multiple role hazards abound.
• Clinical contraindications
• Dissatisfaction with products/services
• Feelings of exploitation

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Barter counseling for bathroom repair in Grand
Rapids

• Reply to sale-948491022_at_craigslist.org
• Date 2008-12-07, 1209PM ESTMy husband is a
  capable and (sic) effecive counselor,
  licensed...but he is not good at home
  repairs/construction. I will trade his expertise
  for your time with him as a counselor if you can
  help us with tub and tile repair and plumbing. We
  had a termite problem that we fixed but the place
  needs a new floor and other stuff...if you are
  struggling with depression or bipolar, he is your
  man...maybe your spouse, child, etc. He is truly
  an excellent counselor. We have our own
  non-profit and give to others without charging so
  our financial situation is limited, but looking
  to trade! thanks. Location NE Grand Rapids
• PostingID 948491022

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Maybe its time to retire (or change careers)
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Time to retire?

• Considerations in closing a practice
• Client notifications and records
• Wind-down payables and receivables
• Partners, staff, referral sources
• Covering your tail (professional liability
  insurance protection)
• Self care

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Time to retire notifications and records

• Notify and refer clients as needed.
• Make arrangements for clinical records management
  that comply with state and federal laws.
• Make arrangements for business records that
  comply with state and federal laws.

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Student's confidential records found in alley

• Erin Mendez Sean Leidigh , WGNTV NEWS, May 30,
  2009 , CHICAGO
• Years of Chicago Public School student's
  confidential, sealed records somehow made their
  way to a Lakeview alley dumpster, totally filled
  with special education records, clearly labeled
  by name and containing highly personal
  information photographs, home addresses, parents
  information, results of psychological tests.
  Also buried among the paperwork were social
  security numbers, SAT scores and a slew of taped
  envelopes, with the words "to be opened only by
  the psychologist.There was a common thread on
  the students records. A signature from Lakeview
  High School's now retired case director of ten
  years, who had this to say about the dumped
  files, "Those records are highly confidential and
  as far as I'm aware, should be kept sealed
  indefinitely.
• wgntv.com /wgntv-cps-documents-found-in-alley-may3
  0,0,195726.story
•  

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Selling a professional practice

• What does the practice include?
• Furniture, an office, psychological test
  equipment, the name and good will of the practice
  or clinic, a group of clients making use of the
  practice?
• One can sell the furniture, real estate, and
  equipment. But, selling the clients, their files,
  and access to this information raises significant
  ethical issues.

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Time to retire practice finances

• Practitioners cannot ethically transfer clinical
  responsibility for clients or confidential client
  records in a private practice without the
  clients' consent, but can work to allow clients
  continuity of care freedom of choice, and safe
  records management.
• One can delegate fiscal management of residual
  payables and receivables, but the psychologist
  may retain vicarious responsibilities for the
  misdeeds of others
• See works by Woody and Walfish Barnett

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Selling a professional practice

• One solution - - -
• Phasing out retirement or relocation to the buyer
  in close collaboration

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Time to retire liability insurance

• Trailing claims in professional liability
  coverage covering your tail
• The tail an Extended Reporting Period (ERP).
• Occurrence vs claims made policies
• With APAIT the tail is free if you retire,
  become disabled or die while insured with a
  claims-made policy. Check your policy if insured
  elsewhere.
• Notify the carrier within 60 days of the
  termination of your policy to issue the free
  retirement tail.
• Plan to have someone notify the carrier within a
  year in the event of your death or disability.

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Time to retire Self care

• Stay mindful of your own feelings (eagerness,
  sadness, ambivalence, burnout) and focus on the
  duty owed to current and former clients.

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Oops, That was a mistake!Im going back to work.
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Resuming practice

• If you've been out of practice for a few years,
  you might have to
• get yourself re-licensed, get caught up on all
  the continuing education you missed, and perhaps
  join a formal re-entry program.
• contend with your own employability and demands
  for you to know new information technology.
• deal with a potential employers interest in a
  guaranteed long-term relationship.
• prior acts liability insurance (nose-coverage)

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The glass is half-fullYoure in control.