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21 st Century Ethical Issues for the Mental Health Practitioner Gerald P. Koocher, Ph. D. , ABPP Simmons College
Who gets in trouble and why?
Severe claims against psychologists 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
Common Trends: Boundaries & Competence Sex Suicide Child Custody Release of records Role confusion/conflict Confidentiality Record Keeping
Fundamentals of professional liability and malpractice 5
The 4 Ds of Legal Liability The 4 Ds: Dereliction of Duty leading Directly to Damages When does a professional duty apply? What constitutes dereliction? How can one demonstrate direct causation? How can we measure damages? Page 6
Standards of care: the “good enough clinician” Perfection is not the standard Mistake or “judgment call” error People cannot avoid mistakes (but a mistake does not = negligence) Departure from standard of care Many practitioners would not do it Gross negligence Extreme departure from usual professional conduct Most practitioners would not do it Page 7
Risk Assessment Consider: Patient Risk Characteristics Situation or Contextual Risk Potential Disciplinary Consequences Modified by: Therapist’s “Personal Toolbox of Skills” 8
Patient Risk Characteristics Nature of Problem History Diagnosis and Level of Function Expectations Therapeutic readiness Financial Resources Including Insurance Coverage Litigiousness/court involvement Social Support Network 9
Situational Risk Factors Nature of relationship Therapeutic alliance Real world consequences Setting Rural versus urban Solo practice versus institutional practice Type of service requested CBT Family therapy Forensic Evaluation 10
Therapist’s personal toolbox of skills Psychological makeup/personal issues Personal and professional stress levels Training background/qualifications Experience Resources Consultation Access to other providers Involvement with professional groups 11
Personal skills that make a positive difference Risk management skills/self-discipline Risk assessment skills Documentation skills and implementation Willingness to seek and follow good advice Knowledge of ethics code and ability to analyze situations from ethical perspective Limit setting abilities 12
Dealing with the Legal System
The Culture Gap Between Psychologists and Lawyers Mental health practitioners train in a behavioral science model. We believe that an individual applying rigorous experimental methods can discover significant truths within ranges of statistical certainty. Lawyers train as advocates. Lawyers believe that the search for truth depends on a vigorous adversarial cross-examination of the facts. Page 15
The Culture Gap Behavioral scientists seldom give simple dichotomous answers to questions. We prefer to use probabilities, ranges, norms, and continua that reflect the complexity of human differences. Lawyers learn to “try” or weigh facts. Lawyers expect clear, precise, unambiguous decisions, They seek to establish bright lines and clear dichotomies. Page 16
The Culture Gap We strive to empathize with Attorneys believe that they can (and must) at our clients and show them unconditional positive regard. times defend people they detest. Little progress will occur in our work with clients, if we Attorneys may choose do not like/respect each not to ask their clients other. certain questions We constantly collect data (e. g. , “Did you do it? ”) and try to ask all the in order to defend important and sensitive them vigorously. questions. Page 17
Levels of Proof in the Legal System Preponderance of Evidence (51%) Clear and Convincing Evidence (75%) Beyond a Reasonable Doubt (95%) Page 18
Risky Clients & Situations
High Risk Patients & Situations Do you really want to treat everyone who calls for an intake appointment? Page 20
High Risk Patients l Patients who organize their internal object world into hated and adored objects Borderline Personality Disorder Narcissistic Personality Disorder Dissociative Identity Disorder (MPD) PTSD (complex) Patients who were abused as children or are in abusive relationships Page 21
Higher Risk Patients Potentially suicidal patients Conduct frequent risk assessment utilizing current, evidence based methods essential Potentially violent patients Patients involved in unrelated lawsuits Patients with recovered memories of abuse Page 22
Forensic Traps Just trying to help a friend, client, etc. The “vacation time referral” Anticipating litigation (I didn’t see that coming!) To whom do I owe what duties Collaterals Clients for limited purpose
Coerced Treatment with Rx Meds
Sell v. United States, 539 U. S. 166 (2003) Charles Sell, a dentist charged with committing 63 counts of Medicaid fraud, was determined by psychiatric evaluation as incompetent to stand trial. The government psychiatrists recommended psychoactive drugs to restore competency. Having experienced negative reactions to such drugs in the past, Sell refused. As a result, he was incarcerated in a forensic mental institution for 7 years, a longer period of time than the maximum sentence for the crime with which he was charged. On June 16, 2003, Justice Breyer delivered the 6 -3 Supreme Court decision: “We conclude that the Constitution allows the Government to administer those drugs, even against the defendant’s will, in limited circumstances, that is, upon satisfaction of conditions that we shall describe. Because the Court of Appeals did not find that the requisite circumstances existed in this case, we vacate its judgment. ” Sell won his right to refuse to take psychoactive drugs, but his victory seemed a hollow one at substantial cost.
Child Custody Cases: Key Advice Don’t treat the system casually! Get formal training and mentored experience. Seek judicial appointment, if possible. Clarify roles and expectations with all parties at the outset.
Common criticisms of psychologists in custody disputes Deficiencies and abuses in professional practice. Inadequate familiarity with the legal system and applicable legal standards. Inappropriate application of assessment techniques. Presentation of opinions based on partial or irrelevant data.
Common criticisms of psychologists in custody disputes Overreaching by exceeding the limits of psychological knowledge of expert testimony. Offering opinions on matters of law. Loss of objectivity through inappropriate engagement in the adversary process. Failure to recognize the boundaries and parameters of confidentiality in the custody context.
Elements of Notification in a Custody Evaluation Provide a statement of adult parties’ legal rights with respect to the anticipated assessment Give a clear statement regarding the purpose of the evaluation. Identify the requesting entity. ▪ (Who asked for the evaluation? ) Describe the nature of anticipated services. ▪ (What procedures will you follow? ) Explain the methods to be utilized. ▪ (What instruments and techniques will you use? ) Specify whether or not the services are court ordered.
Elements of Notification in a Custody Evaluation Delineate the parameters of confidentiality. Will anything be confidential from the court, the parties, or the public? Who will have access to the data and report? How will access be provided? Provide information regarding: The evaluator’s credentials; The responsibilities of evaluator and the parties; The potential disposition of data The evaluator’s fees and related policies; What information provided to the child, and by whom? Any prior relationships between evaluator and parties; Any potential examiner biases (For example: presumptions regarding joint custody). Consent documentation Obtain consent to disclose material learned during evaluation in litigation. Obtain waiver of confidentiality from adult litigants or there legal representatives. Provide written documentation of consent.
Risky Career Periods
Some things don’t change Page 33
Risky Career Periods Therapists who engage in inappropriate role blending are often relatively inexperienced. Many trained in graduate programs where students developed complex relationships with educators and supervisors. Similarly, the internship or residency period often involves role blending, including social, evaluative, and business related activities Some new therapists may have had insufficient opportunity to observe professionals with appropriate boundaries in place or experienced appalling supervisory models, involving sexual advances and other improper behavior as students. Page 34
Risky Career Periods The mid-career period can prove risky for those therapists whose profession or life in general has not panned out according to their own expectations. Divorce or other family‑based stresses involving their teenage or young adult children, onset of a chronic illness, and apprehension about aging are among other mid-career difficulties that can impair professional judgment. The majority of therapists who engage in sexual relationships with their clients are middle‑aged. Another elevated risk period can occur at the far end of the career cycle. Sometimes older therapists have, perhaps without full awareness, come to see themselves as having evolved beyond questioning or having earned some sort of “senior pass” bequeathing the freedom to do whatever they please. Page 35
Confidentiality Hazards & Mandated Reporting
Mandated reports Who, what, and to whom… Child abuse Elder abuse Dependent person abuse Others… ▪ Abuse of former client(s) (Minnesota) ▪ Unsafe drivers (Pennsylvania) ▪ Use of tetrahydrocannabinol or has alcoholic beverages during pregnancy (Minnesota)
Psychologist Accused of Failing to Report Child Abuse POSTED: 6: 35 am EDT April 9, 2009 http: //www. theindychannel. com/news NORTH VERNON, IN -- A psychologist was arrested in his Jennings County office Wednesday on a charge of failing to report child abuse or neglect. Police said Dr. Robert Dailey did not report a case in which a juvenile suspect in a child molestation investigation told him of inappropriately touching another juvenile during an appointment. The juvenile's case went through the juvenile justice system.
626. 5561, Minnesota Statutes 2007: REPORTING OF PRENATAL EXPOSURE TO CONTROLLED SUBSTANCES-- “A person mandated to report… shall immediately report to the local welfare agency if the person knows or has reason to believe that a woman is pregnant and has used a controlled substance for a nonmedical purpose during the pregnancy, including, but not limited to, tetrahydrocannabinol, or has consumed alcoholic beverages during the pregnancy in any way that is habitual or excessive. Any person may make a voluntary report if the person knows or has reason to believe that a woman is pregnant and has used….
626. 5561, Minnesota Statutes 2007: REPORTING OF PRENATAL EXPOSURE TO CONTROLLED SUBSTANCES-- An oral report shall be made immediately by telephone or otherwise. An oral report made by a person required to report shall be followed within 72 hours, exclusive of weekends and holidays, by a report in writing to the local welfare agency. Any report shall be of sufficient content to identify the pregnant woman, the nature and extent of the use, if known, and the name and address of the reporter. ”
Confidentiality and Deceased Patients Legal representative of estate have authority unless specifically prohibited by state law (HIPAA Privacy Rule) Not required if licensed therapist decides, in the exercise of reasonable professional judgment, that treating an individual as personal representative is not in patient’s best interest (HIPAA Privacy Rule) Page 41
Still more twists on confidentiality of dead people Middlebrook, D. W. (1991). Anne Sexton: A biography. New York: Vintage Books. Martin Orne, MD, Ph. D Swidler & Berlin and James Hamilton v. United States U. S. 97 -1192. Opinion by Rehnquist, joined by Stevens, Kennedy, Souter, Ginsburg, and Breyer, held that notes were protected by attorney-client privilege because both a great body of case law and weighty reasons support the position that attorney-client privilege survives a client's death, even in connection with criminal cases. ▪ Opinion cited: Jaffee v. Redmond, 518 U. S. 1, 17 -18, 135 L. Ed. 2 d 337, 116 S. Ct. 1923 (1996) Page 42
Technological Innovation and Risk in Mental Health Practice
Arenas requiring attention Activities Concerns Data acquisition Confidentiality Data analysis Competence Data Quality Transmission Data Storage Service Delivery Safety Convenience
Incentives and Limitations Incentives Third party claims filing incentives Governmental incentives Market segment incentives Limitations Access ▪ Equipment ▪ Bandwith ▪ Cost Consumer resistance Provider resistance
You will most likely soon become involved with electronic client contact and service delivery (if you’re not already). • Client communications content continuum – Professional to professional consultation – Schedule or reschedule client appointments – Provide clients with advice between sessions – Provide emergency intervention for clients – Use as a primary service delivery mode to clients – Social networking issues
What modalities will you use? Client communications telemetry modality continuum Voice and visual Voice only Cordless, Cellular, VOIP (Voice over Internet Protocols) Electronic mail Routine messages Attachments and records transmission “Push” mail to HHDs (hand held devices)
What rules, laws, or principles apply? Who regulates the practice? Where do the services take place? What are (or will be the standards of care?
Data Storage Paper, magnetic, optical, and crystalline media Safety ▪ Encryption Permanence Portability
Does e-mail = medical records? Reading and deleting e-mails might be customary when e-mailing for personal use. But health care professionals incorporating e-mail into their practices might have to get out of that habit and enter the unfamiliar territory of e-mail archiving. Unlike a telephone conversation that ends with no formal recording an e-mail message is a written record, and it must be maintained if it is considered a health record.
Transmission Data/Voice Encrypted or unencrypted Error potential
Carnivore, Echelon, and Tempest • Carnivore is an e-mail wiretap system developed by the FBI to read messages circulated amongst suspected criminals and terrorists. . . and everybody else. • Echelon refers to the electronic global system which can capture and analyze virtually every phone call, fax, email and telex message sent anywhere in the world. Every word of every message in the frequencies and channels selected at a station is automatically searched. • Tempest is a code word for electromagnetic snooping. It's usual for military electronics to be "Tempest hardened" in order to shield them from high-tech spying, disruptive interference, and EMPs.
Public Law 107 -56 “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001” Sec. 215. Access to Records and Other Items Under the Foreign Intelligence Surveillance Act (FISA). ▪ Title V of the Foreign Intelligence Surveillance Act of 1978 (50 U. S. C. 1861 et seq. ) was amended by striking sections 501 through 503 and inserting the following:
Public Law 107 -56 • Sec. 501. Access to Certain Business Records for Foreign Intelligence and International Terrorism Investigations. – (a)(1) The Director of the Federal Bureau of Investigation or a designee … may make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to protect against international terrorism or clandestine intelligence activities…. – (c)(1) Upon an application made pursuant to this section, the judge shall enter an ex parte order as requested, or as modified… – (2) (d) No person shall disclose to any other person (other than those … necessary to produce the tangible things…) that the FBI has sought/obtained … things… – (e) A person who…produces … things under an order … section shall not be liable to any other person. . .
United States of America v. Theresa Marie Squillacote (2000). 221 F. 3 d 542. Theresa Marie Squillacote (AKA: Tina, Mary Teresa Miller, The Swan, Margaret, Margit, Lisa Martin, and her husband, Kurt Stand; convicted of espionage. For 550 days the FBI maintained secret electronic surveillance of the couple's bedroom, and intercepted telephone calls with her psychotherapist (Jose Apud, MD), and attempted to lure the woman into damaging disclosures.
Theresa Squillacote & Kurt Stand q Theresa - born in Chicago in November 1957, earned a master's degree at the University of Wisconsin, and a law degree from Catholic University in Washington, DC. q Kurt fled from Germany during Hitler's reign, but maintained contacts with friends in East Germany. In the 1970 s, he began working for the East German intelligence agency. His work focused on recruiting agents in the USA. In 1981 he recruited Theresa. The married in 1983.
United States of America v. Theresa Marie Squillacote (2000). 221 F. 3 d 542. Theresa Marie Squillacote served as a senior staff attorney in the office of the Deputy Undersecretary of Defense for Acquisition Reform until January 1997. Prior to her Pentagon assignment, she worked for the House Armed Services Committee. Kurt Alan Stand worked as a regional representative of the International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers Association
FBI BAP Advice… An FBI Behavioral Analysis Program team (BAP) drafted a personality report for use in the investigation based on her conversations with her psychotherapists. The BAP noted that she had depression, took medication, and had "a cluster of personality characteristics often loosely referred to as 'emotional and dramatic. ” The BAP team recommended taking advantage of Squillacote's "emotional vulnerability, " and described the type of person to whom she might pass on classified materials.
FBI BAP Advice… “LS ignores and neglects her children; her clandestine activities take precedence in her life. She suffers from cramps and is taking the antidepressants Zoloft and [sic] Diserel. LS has wide mood swings. She has dependent childish relationships with men. She is totally selfcentered and impulsive. “ The type of UCA (undercover agent) who approaches her will be very important.
BAP Advice… Because of the above traits— It is most likely that LS will be easily persuaded if an approach is made to her that plays more to her emotions. He might be depicted as the son of communists who left for South Africa in the late 1940 s or early 1950 s. The UCA should make a friendly overture by bringing her a personal gift such as a biography, which is her favorite type of book. The UCA would act professional and somewhat aloof yet responsive to her moods.
Health Information Technology for Economic and Clinical Health (HITECH) Act Part of the American Recovery and Reinvestment Act of 2009 (H. R. 1), the economic stimulus bill that the President signed into law on February 17, 2009 (P. L. 111 -5). Intended to promote the widespread adoption of health information technology (HIT) to support the electronic sharing of clinical data among hospitals, physicians, and other health care stakeholders.
HITECH Act of the American Recovery and Reinvestment Act Imposes more stringent regulatory requirements under the security and privacy rules of HIPAA Increases civil penalties for a violation of HIPAA Provides funding for hospitals and physicians for the adoption of health information technology, and requires notification to patients of a security breach.
HITECH Act of the American Other new privacy and security requirements in HITECH include: Recovery and Reinvestment Act Covered entities must honor a patient’s request to withhold PHI (private health information). Covered entities must limit use or disclosure of PHI to a “limited data set” or to the minimum necessary to accomplish an intended purpose. When requested, covered entities must provide patients with an audit trail of all disclosures of PHI made within the past three years. Employees of covered entities or other individuals who knowingly access, use, or disclose PHI for improper purposes will face criminal penalties. Civil penalties for violations under HIPAA are increased, depending on the conduct. The federal government must impose penalties for willful violations. The penalties range from $100 per violation with a maximum of $25, 000 per year, to the maximum penalty of $50, 000 per occurrence and $1. 5 million per year.
The Vermont Statutes Online – Title 9: Commerce and Trade - Chapter 62: Protection of Personal Information 2435. Notice of security breaches …any data collector that owns or licenses computerized personal information that includes personal information concerning a consumer shall notify the consumer that there has been a security breach following discovery… http: //www. leg. state. vt. us/statutes/fullsection. cf m? Title=09&Chapter=062&Section=02435
Motivational Forces: Uncertainty What’s happening in my profession and the health care system? Will I get/keep a job? Economic insecurity What’s happened to my income? What’s happened to my savings? Lifestyle changes Will I ever retire? If I have retired, 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? 66
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 & Di. Clemente) 67
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? 68
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 69
Branded Therapy In most instances branded therapies do not have trademark protection and use of the term “therapist” does not require a professional license. 70
The Classic Brand: Psychoanalysis 71
Coaching Use of the term “coach” remains largely unregulated by governmental authorities and the mental health professions. 72
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. " 73
Get board certified…. http: //www. ibrt. org/ 74
Evidence Based Practice vs. Psychoquackery ?
Rapid Eye Institute Salem, Oregon Ranae N. Johnson is the mother of 7 children and 22 grandchildren and 4 great grandchildren. Education: American Pacific University; Honolulu, Hawaii Ph. D. (Doctor of Philosophy/Psychology); June 1996 American Institute of Hypnotherapy Doctor of Clinical Hypnotherapy; April 1994 Institute of EMDR; Pacific Grove, California Eye Movement Desensitization and Reprocessing Certificate; March 1991 Long Beach State, Long Beach, California; 1959 -1962 Brigham Young University, Provo, Utah; 1957 -1959 Western Business College, Salt Lake City, Utah; 1956 Certifications National Guild of Hypnotists (Certified Hypnotherapy 1996) Master Neuro-Linguistic Programming (NLP) Technician (July 1990) Page 76
Rapid Eye Technology A natural, safe way to release stress and trauma. Rapid Eye Technology (RET) is among the many new forms of energy medicine emerging into the mainstream to facilitate rapid healing. Learn how to release stressful emotional, mental and physical patterns using: Blinking Eye movements Breathing Stress reduction energy work At the heart of Rapid Eye Technology is the sense of the sacred – an awareness that each person is in essence a perfect spiritual being. Rapid Eye Institute http: //www. rapideyetechnology. com/index. htm Page 77
http: //www. rapideyetechnology. com/selfcare. htm Page 78
RET Quick Release Here is a simple yet effective quick stress relief process you can do for yourself to get a sense for Rapid Eye Technology. Just follow the simple directions here. Please keep in mind this is a SIMPLE demo without a trained RET technician. Doing a session with a RET technician is the only real way to determine if RET will work for you. 1. Identify something that is stressing you. Keep it simple - maybe something recent. For more stressful material, or to do more than this simple process, click here to seek a technician in your area to work with. 2. While thinking about what is stressing you, gauge how much you feel it on a scale of 0 -10 with 0 meaning not at all and 10 meaning totally stressed out. 3. Cast your eyes back and forth in a zigzag pattern while moving the zigzag up and down, as in the illustration. Do this until you feel like you can't do it anymore or like you really want to blink. 4. Blink hard 3 -4 times 5. Take three deep breaths, letting each out all at once in a sigh. 6. Gauge again how you feel on the same 0 -10 scale and notice the difference in the way you feel. 7. Repeat the process to de-stress more or to process another issue. To deal with more stressful material we suggest you contact a RET technician in your area. Click here to find a RET in your area. This demonstration process is intended for simple stress and is not intended to replace competent medical or psychological assistance. If you are dealing with physical problems or an emergency, seek qualified medical attention. Page 79
Okay, I’m 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 80
Coaching & Trauma Therapy as Illustrations How do I become an executive/organizational/personal coach or trauma expert? 81
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 I’ve been through it!) Remember: you can’t hide behind a new identity, if you cite your profession. 82
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. 83
Coach Itall (continued) Itall then offers coaching advice that breaches the confidentiality of others. When challenged ethically, Dr. Itall responds: “I wasn’t functioning as a psychologist when I did the report. I was acting as an organizational coach and the ethics code did not apply. ” 84
One web site of trauma experts (? ) tells viewers… “We” have a strong commitment to reach out to children – consider this: Tragically, 65% of our 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%) 85
Where did the “experts” get their web site’s 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. 86
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… 87
Money Matters and Bartering: Business Meets Multiple Role Relationships in a Bad Economy 88
Common issues made worse in tough times Raising fees Extending credit Sliding fee scales “Waiving” co-payments Billing and collections Bartering 89
What’s 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. 90
What’s 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 client’s 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. 91
Avoiding financially triggered abandonment Never contract for services without first explaining the costs to the client and mutually determining that the costs are 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. 92
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 client’s 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 client’s life. 93
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 client’s/patient’s 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. 94
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. 95
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. 96
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. 97
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. 98
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. Page 99
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 Page 100
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. 101
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. 102
Third‑party Relationships The key to navigating these ethically Know and honor your contractual obligations, while informing clients and protecting their rights. 103
Third‑party Relationships 104
Third‑party Relationships The “moral hazards” of insurance Ex ante – people don’t 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 105
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 106
Bill Collecting Strategies 107
Bill Collecting State and Federal laws define debtor creditor relationships, including: Collection practices Actions of a creditor’s agents Credit policies (e. g. , interest and surcharges) Include any such plans in the client contract or consent notifications. 108
Bill Collecting HIPAA compliance essential Have business associate agreements Do not withhold medical records for non-payment of fees. 109
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. 110
Bartering is an 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 112
Barter counseling for bathroom repair in Grand Rapids Reply to: [email protected] org Date: 2008 -12 -07, 12: 09 PM EST My 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 Posting. ID: 948491022 113
Bartering arrangements with therapy clients Exchanging anything other than money for therapeutic services was long frowned upon under the APA ethics code. However, APA has nearly reversed itself in recent years. The current code leaves only an admonition regarding clinical contraindications and potential for exploitation before entering into a barter agreement with a client (APA 02: 6. 05). On the surface, allowing bartering in hard economic times looks like a win-win situation for clients who want therapy and therapists who want clients. We acknowledge that entering into bartering agreements with clients appears to be a reasonable and even a humanitarian practice towards those who require mental health services but are uninsured and strapped for money. Page 114
Bartering arrangements with therapy clients Many bartering arrangements have proved highly satisfactory to both parties. A marriage and family therapist in a small farming community agreed to take fresh produce as payment for three sessions with a couple who needed professional advice regarding their management of an elderly parent. A counselor in a small town agreed to see a proud but poverty‑stricken client who was mourning the loss of his spouse in return for the client's carpentry work on a charitable home restoration project organized by a group that the counselor actively supported. psychologist performed a child assessment in exchange for five small trees from the parent‑owner of a struggling nursery service. Page 115
Final Considerations about Bartering A rarely discussed and serious bartering complication is that most professional liability insurance policies specifically exclude coverage involving business relationships with clients. Liability insurance carriers may interpret bartering arrangements as business relationships and decline to defend covered therapists when bartering schemes go awry. To obscure matters even further, the fair market monetary value of bartered goods or services must be reported as income on the recipient’s income tax returns. Failure to do so constitutes tax evasion. Page 116
Final Considerations about Bartering To fully meet legal requirements (and thereby behave in a fully honest and ethical manner) requires detailed documentation, creating another type of interaction with the client. The therapist who declared that there was nothing illegal about doing therapy for free and nothing illegal about that client agreeing to work in therapist’s dress shop for free has set up both for charges of income tax fraud and, for therapist, labor law violations. Page 117
Illustrative cases Kurt Court, Esq. , and Leonard Dump, Ph. D. , met at a mutual friend's party. Mr. Court's law practice was suffering because of what he described as mild depression. Dr. Dump was about to embark on what promised to be a bitter divorce. They hit on the idea of swapping professional services. Dr. Dump would see Mr. Court as a psychotherapy client, and Mr. Court would represent Dr. Dump in his divorce. Mr. Court proved to be far more depressed than Dr. Dump anticipated. Furthermore, Court's representation of Dump was erratic, and the likelihood of a favorable outcome looked bleak. Yet, it was Mr. Court who brought ethics charges against Dr. Dump. Court charged that therapy he received was inferior and that Dump spent most of the time blaming him for not getting better faster. Page 118
Illustrative cases Flip Channel, Ph. D. , allowed Penny Pinched to pay her past due therapy bill with a television set that Penny described as near new. However, when Dr. Channel set it up in his home, the colors were faded, and the picture flickered. He told Penny that the television was not as she represented it, and that she would have to take it back and figure some other method of payment. Penny angrily retorted that Dr. Channel must have broken it, because it was fine when she brought it to him. When Channel insisted that the TV was defective, Penny terminated therapy and filed ethics charges against him. She charged that he broke both a valid contractual agreement and her television set. Page 119
Illustrative cases Weight‑reduction specialist, Stella Stern, Ph. D, agreed, after many requests, to work on a professional basis with her good friend Zoftig Bluto. Progress was slow, and most of Bluto's weight returned shortly after losing it. Dr. Stern became impatient because Bluto did not seem to take the program seriously. Bluto became annoyed with Dr. Stern's irritation, as well and lack of progress. Bluto expressed disappointment in Dr. Stern, whom she believed would help her lose weight quickly and effortlessly. An intellectual assessment of 9‑year‑old Billy was recommended by the boy's school. Billy's father, Paul Proud, asked his brother, Peter Proud, Ph. D. , to do it. The results revealed some low‑performance areas and an FSIQ of 93. Paul became upset with his psychologist‑brother for “not making the boy look good to the school. ” Page 120
Illustrative cases Felina Breed, Ph. D. , also raised pedigree cats. Many of her therapy clients were the “cat people” she met at shows. The small talk before and after treatment sessions was usually about cats. Clients also occasionally expressed interest in purchasing kittens from Dr. Breed. She agreed to sell them to her clients, which eventually came back to haunt her. When therapy process was not proceeding as one client wished, a client accused Dr. Breed of using him as a way to sell high‑priced kittens. Another client became upset because Dr. Breed sold her a cat that never won a single prize. This client assumed that if therapist raised “loser cats, ” the trustworthiness of her therapy skills should be questioned as well. Page 121
Illustrative cases Raphael Baroque, professional artist, complained to an ethics committee that Janis Face, Ph. D. , did not follow through with her promises. Baroque had been Dr. Face's client for more than a year, during which time she praised his art work, accompanied him to art shows, and promised to introduce him to her gallery contacts. Baroque began to feel so self‑assured that he terminated therapy, fully expecting that their mutual interest in his career would continue. However, Dr. Face did not return his calls. Baroque became frantic. When contacted by an ethics committee, Dr. Face explained that she always unconditionally supported her clients. But, because Baroque was no longer a client, she had no further obligations to him. Page 122
Maybe it’s time to retire (or change careers) 123
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 124
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. 125
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-may 30, 0, 195726. story 126
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. 127
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 128
Selling a professional practice One solution - - - Phasing out retirement or relocation to the buyer in close collaboration 129
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. 130
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. 131
Oops, That was a mistake! I’m going back to work. 132
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 employer’s interest in a guaranteed long-term relationship. prior acts liability insurance (nose-coverage) 133