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Maintaining Ethical Integrity and Minimizing Risk in Challenging Times ethicsresearch. com Gerald P. Koocher, Maintaining Ethical Integrity and Minimizing Risk in Challenging Times ethicsresearch. com Gerald P. Koocher, Ph. D, ABPP Simmons College 1

Professional Liability Claim Trends Professional Liability Claim Trends

Severe Claims in 2008 453 complaints (59% board complaints). Suicide 17 Sexual abuse 12 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

Common Trends: Boundaries & Competence Sex Suicide Child Custody Release of records Role confusion/conflict Common Trends: Boundaries & Competence Sex Suicide Child Custody Release of records Role confusion/conflict Confidentiality Record Keeping

Motivational Forces: Uncertainty What’s happening in my profession and the health care system? Will 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? 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? 5

How will I respond to the stressors? Denial-Anger-Bargaining-Depression. Acceptance? (per Kübler-Ross) Stages of change: 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) 6

What are my options? Do nothing, things will get better. Change something(s) about my 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? 7

Venturing into new arenas: Competence is the ethical key Branded Therapies Executive Coaching (Life 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 8

Branded Therapy In most instances branded therapies do not have trademark protection and use Branded Therapy In most instances branded therapies do not have trademark protection and use of the term “therapist” does not require a professional license. 9

Coaching Use of the term “coach” remains largely unregulated by governmental authorities and the Coaching Use of the term “coach” remains largely unregulated by governmental authorities and the mental health professions. 10

Whose qualified to coach what? Life-coaches all the rage By Karen S. Peterson, USA 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-Coach by Pat Williams, Ed. D 11

Treating depression and anxiety can seem passé … Let’s do Trauma Therapy: Where did Treating depression and anxiety can seem passé … Let’s do Trauma Therapy: Where did you catch your PTSD? 12

Okay, I’m going to add a skill (facet, service, new thing) to my practice. 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 13

Coaching & Trauma Therapy as Illustrations How do I become an executive/organizational/personal coach or Coaching & Trauma Therapy as Illustrations How do I become an executive/organizational/personal coach or trauma expert? 14

General ethical guidance for establishing competence in an emerging area Ask an expert colleague. 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. 15

The Organizational Coach Ino Itall, Ph. D. has a degree in counseling psychology and 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. 16

Coach Itall (continued) Itall then offers coaching advice that breaches the confidentiality of others. 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. ” 17

One web sit of trauma experts (? ) tells viewers… “We” have a strong 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%) 18

Where did the “experts” get their web site’s statistics ? “National Statistics: ” 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. 19

Sources for the statistic…. a North Atlantic Books volume Company Profile Founded in 1974, 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… 20

Money Matters and Bartering: Business Meets Multiple Role Relationships in a Bad Economy 21 Money Matters and Bartering: Business Meets Multiple Role Relationships in a Bad Economy 21

Common issues made worse in tough times Raising fees Extending credit Sliding fee scales Common issues made worse in tough times Raising fees Extending credit Sliding fee scales “Waiving” co-payments Billing and collections Bartering 22

What’s really important about fees? Inform clients about fees, billing and collection practices routinely 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. 23

What’s really important … Take care to explain the nature of services offered, the 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. 24

Avoiding financially triggered abandonment Never contract for services without first explaining the costs to 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. 25

Avoiding financially triggered abandonment When treatment is in progress and a client becomes unemployed 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. 26

Elements of APA Ethical Code (2002) 3. 12 Interruption of Psychological Services Unless otherwise 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. 27

Increasing fees in the course of service delivery poses dilemmas. If a commitment is 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. 28

Increasing fees (continued) Likewise, a client who enters psychotherapy at an agreed-upon rate has 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. 29

Retainers Some practitioners require clients to pay certain fees in advance of rendering services 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. 30

Retainers (continued) The most common use of such advance payments involves relationships in which 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. 31

Fraud refers to intentional deception that results in harm or injury to another. Four 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 32

Fraud (continued) Second, the misrepresenter's intent is that another will rely on the false 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 33

Fraud (continued) Fourth, the recipient of the information is justified in relying on or 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. 34

Payment for missed appointments If you plan to use this policy in your practice, 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. 35

Third‑party Relationships The key to navigating these ethically Know and honor your contractual obligations, Third‑party Relationships The key to navigating these ethically Know and honor your contractual obligations, while informing clients and protecting their rights. 36

Third‑party Relationships The “moral hazards” of insurance Ex ante – people don’t buy it 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 37

Third‑party Relationships Disguising services not covered “Upcoding” diagnoses Musical chairs in family therapy Billing 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 38

Bill Collecting Strategies 39 Bill Collecting Strategies 39

Bill Collecting State and Federal laws define debtor creditor relationships, including: Collection practices Actions 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. 40

Bill Collecting HIPAA compliance essential Have business associate agreements Do not withhold medical records Bill Collecting HIPAA compliance essential Have business associate agreements Do not withhold medical records for non-payment of fees. 41

Bill Collecting Strategies Collection agencies – you retain responsibility Small claims court – acceptable, 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. 42

Bartering is ethically permissible, but complicated multiple role situation. Establishing the value of the 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 43

Barter counseling for bathroom repair in Grand Rapids Reply to: sale-948491022@craigslist. org Date: 2008 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 44

Maybe it’s time to retire (or change careers) 45 Maybe it’s time to retire (or change careers) 45

Time to retire? Considerations in closing a practice Client notifications and records Wind-down payables 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 46

Time to retire: notifications and records Notify and refer clients as needed. Make arrangements 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. 47

Student's confidential records found in alley Erin Mendez & Sean Leidigh , WGNTV NEWS, 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 48

Selling a professional practice What does the practice include? Furniture, an office, psychological test 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. 49

Time to retire: practice finances Practitioners cannot ethically transfer clinical responsibility for clients or 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 50

Selling a professional practice One solution - - - Phasing out retirement or relocation Selling a professional practice One solution - - - Phasing out retirement or relocation to the buyer in close collaboration 51

Time to retire: liability insurance Trailing claims in professional liability coverage – covering your 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. 52

Time to retire: Self care Stay mindful of your own feelings (eagerness, sadness, ambivalence, 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. 53

Oops, That was a mistake! I’m going back to work. 54 Oops, That was a mistake! I’m going back to work. 54

Resuming practice If you've been out of practice for a few years, you might 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) 55

The glass is half-full— You’re in control. 56 The glass is half-full— You’re in control. 56