st
21
Ethical Challenges in
Century Integrated Practice
Gerald P. Koocher, Ph.D., ABPP
DePaul University
www.ethicsresearch.com
© Gerald P. Koocher,
2014, all right reserved
Plan for Today’s Talk
• How practice patterns are changing or will change and what ethical
challenges lie ahead
• Regulatory trends
• Psychological practice/interaction in health care systems and interprofessional practice
• Electronic records and interactions with “the cloud”
• Telehealth issues
• Social media and marketing
How practice patterns are changing or
will change and what ethical
challenges lie ahead
© Gerald P. Koocher,
2014, all right reserved
How Is Practice Changing
• Psychiatric practice and training has changed
•
•
More drugs, less therapy
Questionable EBPs
•
•
e.g., high frequency prescription of “anti-psychotic” meds for anxiety
Applications of “personalized medicine”
• More people and more diverse populations covered
• Direct to consumer marketing
• Increased engagement of behavioral health in primary care
• Specialty health services
•
e.g., pain, sleep, non-adherence in chronic health conditions
• Telehealth practice
Psychological practice/interaction in
health care systems
© Gerald P. Koocher,
2014, all right reserved
Key Ethical Challenges Associated with the
Patient Protection and Accountable Care Act
Competence and integrity with respect service an outcome metrics.
Multiple role conflicts with health care systems, regulators, and other providers.
Confidentiality with respect to interoperable records and electronic service delivery.
6
© Gerald P. Koocher,
2014, all right reserved
Are you prepared for the Ethical Challenges of ACOs and PCMHs?
(Accountable Care Organizations and Patient Centered Medical Homes)
• Organizational
models for
primary care
that will
improve our
health care
system (?)
Robocop and mermaid pet a unicorn.
7
Integrated Inter-professional Care
• Understanding the culture of interprofessional health care practice and
functioning as a team player
• Communicating more frequently and directly than in traditional mental
health practice
• Working with patients who have medical, mental health, behavioral
health, and co-morbid problems in a fast-paced primary care context
• Working with a more diverse (ethnically, socially, and economically)
population than ever before
• Ability to document the value added by psychologists’ (behavioral
health specialist) engagement
8
Discussing confidential material with colleagues
•
•
Inside or outside the institutional context?
Properly sanitized health care information is not protected under HIPAA regulations (45
C.F.R. §164.514). The following identifiers should be removed or altered when preparing
material for release or discussion in public statements, teaching, or research:
1.Names
2.Geographic subdivisions smaller than a state (although the initial three digits of a zip code may be
used)
3.Any dates (except years) directly related to an individual
4.Telephone, fax, social security, medical record, health plan identification, account, medical device
identification, or license numbers
5.E-mail addresses web universal resource locators (URLs), Internet Protocol (IP) addresses
6.Biometric identifiers including finger and voice prints
7.Full face photographic or comparable images
8.Any other unique identifying number, characteristic, or code
9
Administrative and Financial
Accountability and Autonomy
will shift
• Are you prepare to:
•
Seek additional
credentials?
• Board certification
Integrate your practice?
•
• Co-locate?
• Contract and accept risk?
• Become an employee?
10
How will reimbursement systems change?
• Medicare
• Medicaid
• Insurance exchanges
• Global payment systems
• Who takes the risks?
• Who makes “medical necessity” decisions?
• New billing an diagnostic codes
• Who’s codes rule?
11
Evolving Professional Roles and Conflicts of Interest in Emerging
Payment Systems
• What will happen as fee-for-service systems become
supplanted by incentivized integrated care or “global
payment” systems or will we suffer the ills of poorly
run capitation systems?
• Can we focus on the “virtuous circle of care” and
value based competition? Will we manage ethically?
•
Porter, M.E. & Teisberg, E.O. (2006) "Redefining Health Care: Creating Value-Based
Competition On Results", Harvard Business School Press, 2006.
Strangers in a Strange Land
• The content and culture of training
programs in psychology differ
substantially from medicine and nursing.
• We use:
• Different core content
• Different educational sequences and
pedagogy
• Different socialization approaches
• Different regulatory models
• Different specialization models
Strangers in a Strange Land
• We sometimes don’t even speak the same language.
•
•
a “progressive disease” is one that gets worse and “positive findings”
are a bad sign when discovered during a physical examination
Some physicians seem too willing to see physical complaints as
psychological, and some mental health practitioners seem all too
eager to go along with them.
• The game is changing and the rules are not clear
Diagnosis and Procedure Codes
Science versus Politics
• Uncomplicated Bereavement
• Pediatric Bi-Polar Illness
• Syndromes
• Down’s Syndrome
• Parent-Child Alienation Syndrome
• DSM vs ICD
• The “psychoanalyst” approach
Will the ICD Replace the DSM?
New ICD-10 Codes
• V97.33XD: Sucked into jet engine, subsequent encounter.
• Y93.D: Activities involved arts and handcrafts.
• SW55.41XA: Bitten by pig, initial encounter.
• W61.62XD: Struck by duck, subsequent encounter.
• Z63.1: Problems in relationship with in-laws.
• W220.2XD: Walked into lamppost, subsequent encounter.
• Y93.D: V91.07XD: Burn due to water-skis on fire, subsequent
•
•
•
•
encounter.
W55.29XA: Other contact with cow, subsequent encounter.
W22.02XD: V95.43XS: Spacecraft collision injuring occupant.
W61.12XA: Struck by macaw, initial encounter.
R46.1: Bizarre personal appearance.
16
The Bad news:
• Psychologists’ education and training has
typically not prepared us well to function within
the culture of the health care system.
• Non-physicians in a physician dominated system.
• Psychiatry has at times played the role of and
ambivalent partner or outright adversary.
• Ally in coverage advocacy
• Opponent in Rx privileges
But the Times They are a Changing
• “Most of the prescribing of psychotropic medications
has been dominated by general physicians who do the
bulk of prescribing, estimated at more than 75 percent
of all prescriptions for psychiatric medications in the
U.S…(Sharfstein, 2006)
• “Psychiatric residents increasingly claim that they have
no interest in psychotherapy and therefore see no point
in attending seminars on the subject or meeting with a
psychotherapy supervisor for one-to-one instruction...
“(Gabbard, 2005)
• In 2013 only 50.1% of the 1,360
psychiatric residency slots were
filled by U.S. medical school
graduates.
• 30 slots went unfilled and the rest
were filled by International Medical
Graduates (219 with U.S. and 186
with non-U.S. graduates).
• [Culture shift FMG to OMG to IMG]
The Better News
• Psychological techniques and approaches
have attracted significant attention among
non-psychiatric physicians.
• Integrated care service models will
increasingly draw on psychological
practitioners.
• Interprofessional practice has become a
“buzz word.”
The Central Issues in
Health Care Ethics
• What problems
should we try to
solve?
• What problems
can we solve?
• Who drives the
agenda?
Interprofessional Ethics in Health Care
• Quality of Care
• Communication
• Integration and collaboration
• respect for conflicting points of view
• Solution focused
• Follow through
• Patient Choice
• Access to information versus understanding
• Non-medical variables (e.g., personal preference,
quality of life, spirituality)
Sample Issues Where Psychological Care Adds value
• Autistic Spectrum Disorders
• Caregiver Stress (Distress!)
• Child Abuse/Neglect
• Dementia
• Disability Evaluation Requests
• End of Life
• Habit-related health problems
• Pain
• Payment and Diagnosis Issues
• Procedure Eligibility (bariatric surgery, transplantation)
Integrated Record Systems:
The eMR, ePHI, and e-billing
• Do you want to share your psychotherapy
records with your proctologist?
• How can you avoid accidentally e-mailing
sensitive material?
• What problems have we seen most commonly
documented?
24
Health Insurance Portability
and Accountability Act
(HIPAA) and ePHI
Kennedy-Kassenbaum
Act of 1996
AKA: 45 C.F.R.160
25
© Gerald P. Koocher,
Ph.D., 2014, All Rights
© Gerald P. Koocher,
Reserved
2014, all right reserved
Privacy Rule Terminology
• Protected Health Information (PHI)
• Personally identifiable information that is created or
received by a health care provider that relates to physical
or mental health of an individual
• Increasingly, PHI has become electronic in storage and
transportation (ePHI)
• Health Care
• Care or services related to the health of an
individual…including but not limited to …preventative,
diagnostic, therapeutic …care and counseling, service,
assessment or procedure with respect to the physical or
mental condition, or functional status, of an individual…”
© Gerald P. Koocher,
Ph.D., 2014, All Rights
Reserved
26
Privacy Rule Basics:
• Psychotherapist-Patient Privacy
Protected in 3 ways:
• Minimum Necessary Disclosure
• State Law Pre-emption
• Special Protection given to “Psychotherapy
Notes.”
27
© Gerald P. Koocher,
Ph.D., 2014, All Rights
Reserved
Minimum Necessary Disclosure
• HIPAA requires we limit 3rd party submissions to the minimum
information necessary to conduct the activity for which the data
were requested.
• Applies to information that can be disclosed without patient
authorization.
• Insurers/MCOs can still require information necessary to
establish medical necessity as a condition of coverage.
28
© Gerald P. Koocher,
Ph.D., 2014, All Rights
Reserved
Psychotherapy Notes
•Mental health information is give special
protection under the privacy rule.
•This is accomplished by dividing Mental
Health Information into two categories:
• Protected Health Information (PHI) referred to
as the “Clinical Record”
• Psychotherapy Notes
29
© Gerald P. Koocher,
Ph.D., 2014, All Rights
Reserved
What goes in the “clinical record?”
• The
following information, if kept, must rest in the Clinical
Record
•
•
•
•
•
1. Medication prescription and monitoring
2. Counseling session start and stop times
3. Modalities and frequencies of treatment
4. Results of clinical tests (including raw test data)
5. Summaries of:
• a. diagnosis
• b. functional status
• c. treatment plan
• d. symptoms
• e. prognosis
• f. progress to date
30
© Gerald P. Koocher,
Ph.D., 2014, All Rights
Reserved
What are “psychotherapy notes?”
• Actual language of rule on psychotherapy
records or notes :
• “Notes recorded (in any medium) by a health care
provider who is a mental health professional
documenting or analyzing the contents of
conversation during a private counseling session or a
group, joint or family counseling session and that are
separated from the rest of the individuals medical
record.”
31
© Gerald P. Koocher,
Ph.D., 2014, All Rights
Reserved
Psychotherapy notes: The HHS narrative
“The rationale for providing special protection for psychotherapy
notes is not only that they contain particularly sensitive
information, but also that they are the personal notes of the
therapist, intended to help him or her recall the therapy discussion
and are of little use or no use to others not involved in the therapy.
Information in these notes is not intended to communicate to, or
even be seen by, persons other than the therapist….we have limited
the definition … to only that information that is kept separate by
the provider for his or her own purposes…not to the medical record
and other sources of information that would be normally disclosed
for [TPO].”
32
© Gerald P. Koocher,
Ph.D., 2014, All Rights
Reserved
Must we keep “psychotherapy notes?”
• No, we are not legally or ethically required to keep psychotherapy
•
•
•
notes; they are completely optional.
The decision can vary from patient to patient, and from session to
session, depending on the facts and circumstances of the case.
Many psychologists elect to keep one set of records to minimize
complexity.
In the context of electronic medical records, you may increasingly
want to do this in order to document content that does not “fit” in
the standard clinical record.
33
© Gerald P. Koocher,
Ph.D., 2014, All Rights
Reserved
More on psychotherapy notes
• Must be kept separately from basic record.
• Are not a substitute for individual session notes.
• Cannot be released without patient authorization.
• This includes consultations with other providers
• Patient authorization cannot be required as a condition
of insurance coverage or as part of managed care
utilization review requirements.
• Cannot include raw test data.
34
© Gerald P. Koocher,
Ph.D., 2014, All Rights
Reserved
Sample Fines for HIPAA Privacy and Security Violations
• Parkview Health System, Inc. has agreed to settle potential violations of the
•
•
•
© Gerald P. Koocher,
Ph.D., 2014, All Rights
Reserved
HIPAA Privacy Rule with the Department of Health and Human Services (HHS)
Office for Civil Rights (OCR). Parkview will pay $800,000 and adopt a corrective
action plan to correct deficiencies in its HIPAA compliance program as the result of
medical records dumping.
http://www.hhs.gov/ocr/privacy/hipaa/enforcement/examples/parkview.html
Under another DHHS settlement Affinity Health Plan, Inc. will settle potential
violations of the HIPAA Privacy and Security Rules for $1,215,780. OCR’s
investigation indicated that Affinity impermissibly disclosed the protected health
information of up to 344,579 individuals when it returned multiple photocopiers to
a leasing agent without erasing the data contained on the copier hard drives. In
addition, the investigation revealed that Affinity failed to incorporate the
electronic protected health information stored in copier’s hard drives in its analysis
of risks and vulnerabilities as required by the Security Rule, and failed to
implement policies and procedures when returning the hard drives to its leasing
agents.
35
http://www.hhs.gov/ocr/privacy/hipaa/enforcement/examples/affinityagreement.html
The Health Information Technology for Economic and
Clinical Health (HITECH) Act of 2009.
• Excluded psychologists and most other non-physician
providers from the list of “meaningful users” of electronic
health records
• Not eligible for Medicare and Medicaid incentive
payments designed to encourage adoption of expensive
complex systems
• Lobbying in process
36
© Gerald P. Koocher,
Ph.D., 2014, All Rights
Reserved
Definitions
• Electronic Health Records (EHR)
•
Focus on total health of patient across providers
• Electronic Medical Records (EMR)
•
Digital clinical charts; not easily shared
• Practice Management Software
•
Demographics, scheduling, billing.
• Interoperability
•
Ability to exchange and use information
• Role segregation
•
© Gerald P. Koocher,
Ph.D., 2014, All Rights
Reserved
An HER function that limits personnel access to need-to-know elements of record
(clerk/clinician)
37
No mandate for small practices (outside hospitals) yet, but
when it comes how will access influence what you write?
• Multi-practitioner access
• Patient real-time access
• HIPAA and HITECH both mandate role segregation
• Special mental health data segregation to be developed
38
© Gerald P. Koocher,
Ph.D., 2014, All Rights
Reserved
Electronic issues in malpractice claims
CRICO, 2013
•
In 147 instances electronic health records contributed to
“adverse events” affecting patients — half of them
designated as serious (12 month period of newly filed
malpractice claims 2012 - 2013, in a total pool of around 5,700
cases.
•
•
•
•
•
•
Incorrect information (inserted and/or repeated)
Hybrid record conversion problems
Electronic routing failures
Unable to access data
Pre-filled forms or copied and pasted text
System design not aligned with need
39
© Gerald P. Koocher,
Ph.D., 2014, All Rights
Reserved
Steps to take now…
• Seek opportunities to learn interprofessional practice skills, new
diagnostic and procedure codes.
• Gain competence in work with medical patients, particularly with
behavioral health and co-morbidity linked to depression and
anxiety.
• Consider board certification and inter-jurisdictional practice
credentials.
40
© Gerald P. Koocher,
Ph.D., 2014, All Rights
Reserved
More steps to take now…
• Modify your HIPAA notice (if necessary) to comply with any eMR standards.
Educate your patients even if not required under the “TPO exemption.”
• Take precautions (and educate your staff) to avoid improper transmissions.
• Use strong passwords and consider encryption for your files.
• If you consider joining an PCMH use an sophisticated attorney to review the
contract and consider an information technology consultant if record
integration is involved..
41
© Gerald P. Koocher,
Ph.D., 2014, All Rights
Reserved
Cloud Computing
•
•
•
•
•
•
Where’s the cloud?
How robust is the cloud?
What’s in the cloud?
•
•
Software
Data storage
Who has access to the cloud?
Accessing remote computers
Personal clouds and “fogging”
•
•
•
Cloudfogger.com (local encryption prior to
uploading)
“MyCloud” products by Western Digital
Personal servers
42
© Gerald P. Koocher,
Ph.D., 2014, All Rights
Reserved
E-therapy and assessment
• How do you (or will you) provide assessment and treatment services
•
using remote transmission or taking advantage of remote storage?
Ethical issues (4 C’s):
•
•
•
•
Competence (and treatment efficacy)
Confidentiality (security of communications and consent)
Crises (availability for effective intervention)
Cross-jurisdictional challenges
•
Are you ready to see edited clips of yourself on YouTube?
• Novel hazards:
43
© Gerald P. Koocher,
Ph.D., 2014, All Rights
Reserved
Increased engagement of behavioral
health in primary care
© Gerald P. Koocher,
2014, all right reserved
Potential Roles
• Screening for risks or procedures (e.g., depression, procedure tolerance)
• Procedure management (e.g., preparation, real-time, follow-up)
• Patient education
• Enhancing professional communication across diverse populations.
• Managing non-adherence
• Symptom control (e.g., anxiety, depression, pain, sleep disturbance)
• Prevention (e.g., anticipation of stressors, bereavement interventions)
• Outcome, Quality of Life (QoL), and Quality Improvement (QI) tracking
research
Disagreement with Treatment Advice
• Coping with cultural
diversity
• If you only have a
hammer, every
problem looks like a
nail.
•
•
•
Cardiac surgery versus
Interventional
Cardiology
You want me to take
drugs for that?
Using data and patient
preference to drive the
agenda.
Key Ethical Issues Overall
• Competence (including new skills acquisition, when necessary)
• Consent (making sure patients understand and agree with shifts)
• Contracting integrity that serves the patient
Regulatory Trends
© Gerald P. Koocher,
2014, all right reserved
To whom do I owe a duty of care and in what
hierarchical sequence?
The person in the
room?
The family, guardian,
or attorney?
The agency or
institution?
Society at large?
All of the above?
49
© Gerald P. Koocher,
Ph.D., 2014, All Rights
Reserved
Some things have not changed
• Want to cut your risk of an “adverse
incident” by 95%?
• Don’t engage in sexual with current or former
clients or their relatives.
• Don’t do anything that someone might mistake
for a “forensic assessment,” without adequate
training, informed consent, and thorough data
collection.
• Don’t switch roles in a professional relationship
without well documented consent by all parties.
50
Significant Claims/ New Trends
Boundary Violations
Suicide
Wrongful
Improper
death
treatment
Homicide
Dual Relationship
Billing – Medicare Investigations
Copyright/Trademark Infringement (e.g., website images
and music)
51
© Gerald P. Koocher,
Ph.D., 2014, All Rights
Reserved
Most Common Litigation or
Licensing Complaint Triggers
• Improper care/evaluation
• Child-custody related issues
• Credit/billing impropriety
• Suicides
• Homicides
• Sexual abuses - dual relationship/boundary
violations
• Non-sexual dual relationship/boundary
violations
• Employment practices
© Gerald P. Koocher,
Ph.D., 2014, All Rights
Reserved
52
Data from the Massachusetts Board of
Registration
2007 - 2013
© Gerald P. Koocher,
2014, all right reserved
121 issues raised in 112 separate cases
Charge
N
Typical Penalty
Alcohol or substance abuse
3
Surrender or revocation of license
Allowing unlicensed practice
5
Reprimand/Censure/Public Reproval/Letter of Admonition, monetary
penalty
Failure to comply with CE or competency requirements
59
Additional education, monetary penalty
Improper or abusive billing
2
Probation, supervised practice
Inadequate records
8
Supervised practice, additional education required. Probation
Incompetence, negligent, or unprofessional conduct
3
Probation, supervised practice or Surrender of license
Misrepresentation of credentials
7
Monetary penalty
Practicing beyond scope of practice
1
Probation, supervised practice
Practicing with an expired license
11
Additional education, monetary penalty
Practicing without a license
13
Cease and desist, Monetary Penalty
Sexual misconduct
4
Surrender or revocation of license
Substandard testing/assessment
1
Probation
Other
4
Reprimand, censure, public reproval, letter of admonition
121 issues raised in 112 separate cases
N
Other
Substandard testing/assessment
Sexual misconduct
Practicing without a license
Practicing with an expired license
Practicing beyond scope ofpPractice
Misrepresentation of credentials
Incompetence, neglegent, or unprofessional conduct
Inadequate records
Improper or abusive billing
Failure to comply with CE or competency requirements
Allowing unlicensed practice
Alcohol or substance abuse
0
10
20
30
40
50
60
70
Frequency of MA Board of Registration Actions 2007- 2013
Surrender or revocation of license
Supervised practice
Reprimand, censure, public reproval, letter of admonition
Probation
Monetary penalty
Cease and desist
Additional education
0
10
20
30
40
50
60
70
80
90
100
Sample Actions by
Massachusetts Board of Registration
•
•
•
Joseph F. Doherty, Cambridge
The Board placed Doherty's license on probation for one year following allegations that
he failed to conduct a proper client evaluation and failed to maintain adequate and
accurate treatment records. In addition, Doherty's practice was placed under review by a
consulting psychologist during the one-year probation period.
Ellen Leigh, Arlington
The Board issued a civil administrative penalty against Leigh in the amount of $1,500 for
engaging in unlicensed practice of psychology. Leigh performed the functions of a
psychologist when the Board had not issued her a license. Leigh also agreed to complete
a continuing education class in the area of ethics/risk management.
Mitchell Abblett, Newton
Under a consent agreement, Abblett accepted imposition of a civil administrative fine of
$5,000. In the agreement, Abblett acknowledged that in the course of his previous
employment at the Judge Rotenberg Educational Center, he was assigned and had
utilized the title "psychologist;" and that his use of that title prior to his licensure
constitutes a basis for disciplinary action.
Kentucky
http://psy.ky.gov/Pages/disciplinary.aspx
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
Final Order
7/3/2014
Final Order and Settlement Agreement
5/7/2014
Final Order
3/21/2014
Cease and Desist
2/28/2013
Settlement Agreement
7/23/2012
Settlement Agreement
4/2/2012
Settlement Agreement
11/10/2011
Settlement Agreement
10/3/2011
Settlement Agreement
9/12/2011
Settlement Agreement
8/23/2011
Final Order
3/7/2011
Cease and Desist
12/30/2010
Settlement Agreement
8/9/2010
Settlement Agreement
3/1/2010
Final Order
1/4/2010
Standards of care:
the “good enough clinician”
• Mistake or “judgment call” error
•
People cannot avoid mistakes
(but a mistake ≠ negligence)
• Departure from standard of care
•
Many practitioners would not do it
•
Extreme departure from usual professional conduct most practitioners would not do it.
• Gross negligence
59
© Gerald P. Koocher,
Ph.D., 2014, All Rights
Reserved
Understanding Professional Liability Insurance
• Occurrence Policies
•
Pay once, covered
“forever”
2016
• Claims Made Policies
•
(trailing claims)
• Nose coverage
•
© Gerald P. Koocher,
Ph.D., 2014, All Rights
Reserved
2014
Must keep coverage
current
• Tail coverage
•
2015
(prior acts)
2013
2012
2015
2016
2017
2018
60
Regulatory Response to Public Shootings
Illinois Firearm Owners Identification Act (430 ILCS 65)
• On July 9th 2013, Illinois passed HB 183 (Public Act 098-0063), also known
as the Firearm Concealed Carry Act. The Firearm Concealed and Carry Act
expands the reporting requirements for healthcare facilities and
physicians, clinical psychologists and qualified examiners to include any
person that is: adjudicated mentally disabled person; voluntarily admitted
to a psychiatric unit; determined to be a "clear and present danger"; and/or
determined to be "developmentally disabled/intellectually disabled".
• The Illinois FOID Mental Health Reporting System website provides
mandated reporters with 24-hour and immediate access to report an
individual that is receiving mental health treatment or is determined to be
a clear and present danger, developmentally disabled or intellectually
61
disabled.
© Gerald P. Koocher,
Ph.D., 2014, All Rights
Reserved
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….

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.”
62
© Gerald P. Koocher,
Ph.D., 2014, All Rights
Reserved
Reporting mandates and challenges
• Some mandated reporting may lead to discontinuation of
treatment.
• Managing these situations requires a combination of
thoughtfulness and adherence to law.
• Clinician who obey regulatory requirements that conflict with
ethics codes will generally not face ethical misconduct charges,
with the exception of human rights violations carried out under
cover of supposed governmental authority.
63
© Gerald P. Koocher,
Ph.D., 2014, All Rights
Reserved
Required Notifications and Breaches
(including HIPAA obligations)
• Notify at the outset of the professional relationship.
• Include state and federal caveats, but when conflicts exist honor the
regulation that affords the greater privacy to the client.
• Document receipt of notification by the client.
• Understand the TPO exception (Treatment, Payment, and Health Care
Operations)
•
•
Providing, coordinating, and managing health care
Administrative, financial, legal, and quality improvement
64
© Gerald P. Koocher,
Ph.D., 2014, All Rights
Reserved
Basic Components of Release Forms
•
•
•
•
•
•
•
•
Under HIPAA regulations (45 C.F.R. §164.508) each consent or release form must at minimum contain:
A description of the information to be used/disclosed in a specific and meaningful form;
The name or specific identification of the person(s) or class of persons authorized to disclose the
information;
The name or specific identification of the person(s) or class of persons authorized to receive the
information;
Description of the purpose or requested use of the information;
An expiration date or event related to the purpose of the disclosure; and
The signature of the person making the authorization and date of signing. If the signer is acting on
behalf of another, the relationship should be indicated.
Certain required statements must also appear on the release form to notify the signer that:
•
•
•
They have a general right to revoke the authorization in writing, any exceptions, and the procedure to follow.
The care provider or institution may not require the release as a condition of treatment, payment, or eligibility for
benefits.
Once released the information could potentially be re-disclosed by the recipient and thus no longer be protected.
65
© Gerald P. Koocher,
Ph.D., 2014, All Rights
Reserved
Bottom line: know the jurisdictional rules that
apply to your practice.
• Including electronic or remote practice!
66
© Gerald P. Koocher,
Ph.D., 2014, All Rights
Reserved
Telehealth practice
© Gerald P. Koocher,
2014, all right reserved
Context
• Regulatory
•
•
Jurisdictional
HIPAA Compliant
• Technical
•
•
•
Platforms
Connections
Protections
• Clinical
•
What can I (do I want to) Treat
Personal Risk Assessment
Consider:
• Patient Risk Characteristics
• Situation or Contextual Risk
• Potential Disciplinary Consequences
Modified by:
• Therapist’s “Personal Toolbox of Skills”
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
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
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
So what should I do?
•
•
•
•
Know the ethical and legal standards that apply.
Pay attention to practice guidelines.
Provide comprehensive informed consent.
Conduct a conservative evaluation of your competence with clinical populations
and activities:
•
•
•
Knowledge and clinical competence
Technical competence
Emotional competence
Belaboring The obvious?
Communicating by Text: example 1
• “Some of my adolescent patients are inclined to sometimes touch base with
me during the day via text messages. It's usually pretty intermittent, (i.e.,
the text conversations are not lengthy or detailed, just brief check-ins).
Clinically, this seems appropriately supportive to me, but I wonder about the
ethical side of it vis-a-vis confidentiality. I never use my name in the text
messages, but they may have my full name entered into their phone which
would then show up on their screen. I will be interested to hear your
thoughts about this.”
Communicating by Text: example 2
• “A variation on this occurred when I treated a young adult with a flying
phobia. She had to travel by plane with several colleagues and so we worked
through a graduated desensitization treatment plan. Before the actual trip
she asked me to text with her while she was in the airport to get some
surreptitious coping support during the most anxiety-provoking part of the
intervention. I did this and it seemed to help her get through the experience
successfully. But, again, I wondered about possible ethical violations. Thank
you for considering this scenario as well.”
Ask yourself
• How will doing this aid the client?
•
•
Empathic connection?
Support between sessions?
• What hazards does this pose for the client?
•
•
Confidentiality?
Dependence?
• What hazards does it pose for the practitioner?
•
•
•
Unrealistic client expectation?
Clear limitations?
Standard of care?
The “Crisis Text”
• What is the “crisis.”
• Is a text message, Skype, phone call, enough?
• What is the response expectation?
• What are the patient’s circumstances
Cloud Computing
• Where’s the cloud
• How robust is the cloud
• What’s in the cloud
• Software
• Data storage
• Who has access to the cloud
• Accessing remote computers
78
No mandate for psychologists (outside hospitals) yet, but when it
comes how will blended access influence what you write?
• Multi-practitioner access
• Patient real-time access
• HIPAA and HITECH both mandate role
segregation
• Special mental health data segregation to
be developed
79
Legal Hazards Associated with EMRs
•
•
Risk: Because EMRs allow users to move quickly through
patient records, cutting and pasting information along the
way, incorrect information can easily get repeated.
Prevention: Avoid cutting and pasting data in EMRs, and
use caution when moving from one patient’s record to the
next.
Risk: Practitioners charting in EMRs may lead to some less
thorough documentation than with than paper charts..
Prevention: Electronic notes should include full and
careful documentation.
•
•
Risk: Computerized expert systems can offer actuarial guidance in
deferential diagnosis and clinical decision making, but they
cannot possibly cover all contingencies.
Prevention: Avoid over reliance electronic assessment and
diagnostic aids.
Risk: Safeguard confidential electronic patient data can prove
challenging.
Prevention: Use encryption and secure access on all electronic
access devices and discourage employees from taking records or
unsecured content out of the office.
• Risk: Some EMR systems may not clearly document
changes to records.
Prevention: Optimal systems should document
modifications and have a program lockout period
after which no further modifications can be made to a
record.
• Risk: Many states have notification requirements in
the event of a data breach.
Prevention: Understand and follow state law requires
if a data breach occurs, making sure that all
employees understand and follow requirements.
•
Risk: Destruction or delete of electronic records can easily occur by
accident or sometimes intentionally if a lawsuit looms.
Prevention: If sued, all records (including electronic data) related to
the patient in question must be preserved, including emails, phone
messages and computer records.
• http://www.amaassn.org/amednews/2012/03/05/prsa0305.htm
Online and Social Media Issues
Who will search you?
Who will you search?
Engaging with social media
© Gerald P. Koocher,
2014, all right reserved
But beware…
• Site security
• Boundary issues
• Appropriate marketing
• Blogging challenges
• File transfer and e-mail confidentiality
85
© Gerald P. Koocher,
Ph.D., 2014, All Rights
Reserved
Professional Web Sites:
When you control the message
• Access to Information
• Marketing your practice/products
• Directions to your office
• Downloads
• Access to Documentation
• Efficient communication
• Effective promotion of psychologist’s skills, experience, and
competencies/specialties.
86
© Gerald P. Koocher,
Ph.D., 2014, All Rights
Reserved
Facebook, LinkedIn, Twitter, Instagram,
What’s Next?
• Security Issues
• Retention of Files
• Friends of Friends boundary issues
• Fan
• Harassment
• Stalking
• PHI
• Failure to terminate
© Gerald P. Koocher,
Ph.D., 2014, All Rights
Reserved
87
What about searching for information
about clients online?
• Your clients will search for information about you.
• What (if anything) does our ethics code have to say
about using electronic media and search engines to
check on clients?
• Nothing, but ask yourself why and what you would do
with the information you find.
88
© Gerald P. Koocher,
Ph.D., 2014, All Rights
Reserved
Just a few sample options
for data collection
•
•
•
•
•
•
•
•
•
•
•
© Gerald P. Koocher,
2014, all rights reserved
CriminalSearches
Detectivemagic
Facebook
Familywatchdog
Fundrace
Google
Guidestar
Intelius
Netronline
NSOPR.gov
Peoplelookup
•
•
•
•
•
•
•
•
•
•
Pipl
Searchsystems.net
Spock
Spokeo
Vitalrec.com
Whitepages
Whowhere
Whois
Zabasearch
Zoominfo
I don’t want to get Yelped!
What can I do?
• Monitor your web presence
• Use an optimized professional web site and similar publicity to
suppress adverse search returns
• Hire an attorney to raise defamation claims with the website
• Consider contractual prevention strategies
• Consider the services or a reputation protection company (e.g.,
Reputationdefender.com and Medical Justice.com)
• Solicit positive reviews from colleagues
• Try to ignore them and hope they won influence consumers.
I’ve been Yelped
• Response strategies
• Respond on the site without breaching confidentiality.
• Remind readers that there are two sides to every story and that you owe
all clients a duty of confidentiality
• Don’t mention any specifics or identifying information about the
patient.
• Develop an active positive branding program
• Collect consumer satisfaction data.
• Don’t make promises you can’t keep.
• Remember that the Internet is forever
Professional Web Sites:
When you control the message
• Access to Information
•
•
•
Marketing your practice/products
Directions to your office
Downloads
• Access to Documentation
• Efficient communication
• Effective promotion of psychologist’s skills, experience, and
competencies/specialties.
But beware…
• Site security
• Boundary issues
• Appropriate marketing
• Blogging challenges
• File transfer and e-mail confidentiality
Facebook, LinkedIn, Twitter, Google Voice,
What’s Next?
• Security Issues
• Retention of Files
• Friends of Friends boundary issues
• Fan?
• Harassment
• Stalking
• PHI
• Failure to terminate
Do you Need a Friending Policy
Sample per The Trust:
“I do not accept friend or contact requests from current or
former clients on any social networking site (Facebook,
LinkedIn, etc.). I believe that adding clients as friends or
contacts on these sites can compromise your confidentiality
and our respective privacy. It may also blur the boundaries of
our therapeutic relationship. If you have questions about this,
please bring them up when we meet and we can talk more
about it.”
The Trust’s Suggestion on “Following” Policy
• “I publish a blog on my website and I post psychology
news on Twitter. I have no expectation that you as a client
will want to follow my blog or Twitter stream. However, if
you use an easily recognizable name on Twitter and I
happen to notice that you’ve followed me there, we may
briefly discuss it and its potential impact on our working
relationship.
• My primary concern is your privacy.”
More on Following
• “Note that I will not follow you back. I only follow
other health professionals on Twitter and I do not
follow current or former clients on blogs or Twitter.
My reasoning is that I believe casual viewing of
clients’ online content outside of the therapy hour
can create confusion in regard to whether it’s being
done as a part of your treatment or to satisfy my
personal curiosity”
Zur Institute on
Modern Day Digital Revenge
• file:///G:/Documents/MPA/Workshop/Modern%20Day%20Digital%20Reven
ge%20on%20sites%20such%20as%20LinkedIn,%20Google+%20and%20Ye
lp.htm
The Ethical Perils of Social Media
• The use of social media and Internet search capabilities
have let to new forms of instantaneous mass
communications that have eroded traditional concepts of
privacy, while creating some new ethical challenges.
• Invisible access to and use of (previously personal) information
• New forms of communication that can blur personal and professional
boundaries
•
•
Complex data distribution and communication systems that are readily
adopted but often not fully understood by users
New venues for naughty behavior (e.g., bullying, cyberstalking, defamation,
and voyeurism)
99
© Gerald P. Koocher,
Ph.D., 2014, All Rights
Reserved
Case Example
•
•
•
•
Help, I’ve been Yelped
Dr. Frank Lee Stunned, an experienced psychotherapist in private practice,
thought he’d dealt with almost everything. He’s run a successful small
business despite difficulties with third party payers over they years.
A client alerted Dr. Stunned that he’d seen a negative comment about him
while scanning Yelp.com for restaurant reviews.
The review posted by “Still in the Dumps,” reported an increase in her
depression and anxiety symptoms after months of working with Dr. Stunned,
who she described as “insensitive, incompetent, and abusive.” She noted that
she’d always felt uncomfortable about the way he seemed focused on her
breasts and wanted to warn other women about him.
100
© Gerald P. Koocher,
Ph.D., 2014, All Rights
Reserved
I’ve been Yelped
• Dr. Stunned suspects that “Still in the Dumps” is a borderline patient who
he had to terminate because of outrageous demands for more contact and
noncompliance with treatment. After the difficult termination she’d
muttered about getting even.
• Dr. Stunned googled himself and the first search item returned is the Yelp
review. He’s anxious, dismayed, and furious. He wants to sue Yelp and the
client.
• Complaints and threats to Yelp won’t help.
• Attempting to seek a libel judgment may make things worse.
101
© Gerald P. Koocher,
Ph.D., 2014, All Rights
Reserved
What can you do?
• Monitor your web presence.
• Use an optimized professional web site and similar publicity to suppress
adverse search returns
• Hire an attorney to raise defamation claims with the website
• Consider contractual prevention strategies
• Consider the services or a reputation protection company (e.g.,
Reputationdefender.com and Medical Justice.com)
• Solicit positive reviews from colleagues
• Try to ignore them and hope they won influence consumers.
102
© Gerald P. Koocher,
Ph.D., 2014, All Rights
Reserved
Potential Response Strategies
• Reactive Response strategies
•
•
•
•
•
•
•
© Gerald P. Koocher,
Ph.D., 2014, All Rights
Reserved
Respond on the site without breaching confidentiality.
Remind readers that there are two sides to every story and that you
owe all clients a duty of confidentiality.
Don’t mention any specifics or identifying information about the
patient.
Develop an active positive branding program and optimized web site
you control.
Collect consumer satisfaction data.
Don’t make promises you can’t keep.
Remember that the Internet is forever
103
how to respond to an ethics or
licensing board inquiry.
© Gerald P. Koocher,
2014, all right reserved
Dealing With Licensing Board
and Ethics Complaints
• Know who you are dealing with and understand the
nature of the complaint and the potential
consequences before responding
• Licensing board or professional association?
• Psychologist of non-psychologist investigator?
• Formal or “informal” inquiry?
Understand the Precise Nature of the
Complaint and Rules That Apply to
Responses and Any Proposed Actions
• Have you been given a detailed and comprehensible rendition
of the complaint made against you?
• Have you been provided with copies of the rules, procedures,
or policies under which the panel operates?
• Do not contact the complainant directly or indirectly.
• If the complaint involves a current or former client, make
certain that the authorities have obtained and provided you
with a waiver of confidentiality signed by the client.
• Obtain consultation before responding.
Organize Your Defense and Response to the
Charges Carefully and Thoughtfully
• Assess the credibility of the charge. Compile and organize
your records and the relevant chronology of events. Respond
respectfully and fully to the questions or charges within the
allotted time frame.
• If asked to provide unusual materials during the investigatory
process, do not comply without first seeking legal
consultation
• If offered a settlement, “consent decree,” or any resolution
short of full dismissal of the case against you, obtain
additional professional and legal consultation.
•
•
•
•
•
•
•
If you need more time to gather materials and respond, ask for it. Be sure to retain
copies of everything you send in response to the inquiry.
Do not take the position that the best defense is a thundering offense. This will
polarize the proceedings and reduce the chances for a collegial solution.
If you believe that you have been wrongly or erroneously charged, state your case
clearly and provide any appropriate documentation.
If the complaint accurately represents the events, but does not accurately
interpret them, provide your own account and interpretation with as much
documentation as you can.
If you have committed the offense charged, document the events and start
appropriate remediation actions immediately (e.g., seek professional supervision
to deal with any areas of professional weakness, enter psychotherapy for any
If a charge or complaint is sustained and you are asked to accept disciplinary
measures without a formal hearing, you may want to consider reviewing the
potential consequences of the measures with an attorney before making a
decision.
Know your rights of appeal.
Take Steps to Support Yourself Emotionally Over What Is
Likely to Be a Stressful Process Extending Over Several
Months
•
•
•
Be patient. It is likely that you will have to wait for what will seem like a long while
before the matter is resolved. It is perfectly acceptable to respectfully inquire regarding
the status of the matter from time to time.
If appropriate, confide in a colleague or therapist who will be emotionally supportive
through the process. Your relationship with your therapist may be protected by
privilege. We strongly suggest, however, that you refrain from discussing the charges
against you with many others. Doing so may increase your own tension and likely
produce an adverse impact as more and more individuals become aware of your
situation and may possibly raise additional problems regarding confidentiality issues. In
no instance should you identify the complainant to others, aside from the board or
committee making the inquiry (after they produce a signed release) and your attorney.
Take active, constructive steps to minimize your own anxiety and stress levels. If this
matter is interfering with your ability to function, you might benefit from a professional
counseling relationship in a privileged context.