I’d like to preface this comment by saying that I do not have an opinion about whether promotions such as Living Social, Groupon, etc., are appropriate or constitute impermissible fee splitting when used by psychologists. I do, however, think that it’s useful to think about these things as the marketplace changes and as psychologists feel the need to be more enterprising.
Here’s the text of the American Psychological Association Ethics Code section 6.07- “Referrals and Fees: When psychologists pay, receive payment from, or divide fees with another professional, other than in an employer- employee relationship, the payment to each is based on the services provided (clinical, consultative, administrative, or other) and is not based on the referral itself.”
It’s important to remember the main purpose of 6.07, which is to make sure that referrals are made based upon clinical indications and not upon a fee. This provision of the Ethics Code is in place to maintain the integrity of the treatment. It’s also helpful, I think, to keep in mind that 6.07 does not prohibit fee sharing; its function is to ensure that any fee distribution is based upon services rendered.
Here’s how I would approach an arrangement like Living Social or Groupon:
1.) Determine who is making the referral: Are patients self-referred based upon a mass email? Or, is the website targeting individuals based upon other data? Who decides whether the patients purchase the offer and/or visit the psychologist? IMPORTANT: If patients decide to purchase a “deal,” is he/she aware that the psychologist’s participation in the deal is a promotion?
2.) Determine, to a reasonable extent, whether/how the partnering business maintains patient data. Under many circumstances, the mere fact that a patient is seeing a psychologist is confidential. However, patients who willingly choose to disclose that fact to a third party may do so of their own free will. It’s not the psychologist’s dilemma if a patient breaches some elements of confidentiality. Patients do not have a duty of confidentiality. But if the partnering business requires that the psychologist continues to provide patient data after the initial contact, the patients may need to be made aware of this in order to provide consent for this data transaction. Patients can disclose private information on their own, or they can consent to the release of their private information. (It’s certainly possible that many psychologists would reasonably believe that the potential intrusions disrupt the frame to such an extent that the treatment becomes irrevocably warped, but IMHO that is a theoretical judgment and not an ethical decision, per se.) HIPAA Covered Entities may, under some circumstances, need to enter into Business Associate agreements with partner businesses if the information sharing is required (by contract) to continue.
3.) Something else to consider is whether partner businesses such as Groupon or Living Social are more like advertisers or more like business partners? Or, are they some altogether different form of business? Recall that 6.07 provides examples of “clinical, consultative, administrative, or other” as services that are permissible bases for fee division. Is advertising an “other?” Are these types of promotions an “other?”
4.) A very real and practical concern (less an ethical concern) is that the response to these daily deal sites can be overwhelming. Be prepared for an avalanche of calls.
Daily deal sites are clearly new marketing territory for clinicians. Traditional practice, as it has evolved over the last 100 years, has not been particularly forward-looking. However, mental health clinicians are not the first, nor are they the only profession to contemplate using these types of promotions. It might be helpful to see how another profession with duties of confidentiality and similar prohibitions against fee splitting approaches this issue:
Lawyers are one such group of professionals. And as much as it might seem to run contrary to the popular (mis)conception of attorneys, lawyers are, in fact, deeply concerned with matters of professional ethics. Like psychologists, attorneys are required to abide by, and have professional discipline meted out according to, a professional code of ethics. Importantly for the purposes of this discussion, several state Bar organizations have published formal ethics opinions that speak to the appropriateness of daily deal sites and whether participation in these sites constitutes impermissible fee-splitting.
The opinions indicated that, while a literal reading of the prohibition against fee-sharing might indicate that these daily deal sites are disallowed, an examination of the underlying purpose of the rule revealed that these arrangements are not inherently problematic.
The South Carolina Bar
indicated that the proportion of the fee paid to the daily deal site is a reasonable cost of advertising, and the fact that the costs are deducted by the daily deal site does not change the fact that the transaction is, at its core, an advertising
service. The South Carolina Bar also indicated under a separate analysis of the same issue that even if the transaction was literally fee sharing, if the website does not exercise any control over how services are rendered or encroach upon the [professional’s] independent judgment the arrangement was still permissible. This is distinguishable from a kickback, in which the payment is made for the referral irrespective of need. Daily deal sites aren’t offering “recommendations” any more than a banner-ad on a website might be offering “recommendations.”
It is also worth considering that a significantly high number of advance deal purchases go unclaimed. This is, in fact, an attractive element for merchants that routinely use these daily deal services. Money voluntarily given in exchange for products not-rendered. But what might work well for a restaurant might not work well for health professionals. Here, too, the analyses by state bar associations may be helpful for health professionals:
Both New York
and North Carolina
Bar associations have issued opinions that discuss these sites and conclude that they may be permissible for attorneys. However, these two states differ with respect to what they advise with respect to unclaimed services. North Carolina states that lawyers must return payments that were not claimed before the expiration date. New York, on the other hand, does not require a refund and treats the payment as an earned retainer where the purchaser has purchased the availability of the attorney to provide the service before the expiration date.
Clearly, these analyses are for attorneys and should not be adopted for health professionals on a wholesale basis. Attorneys have somewhat different professional responsibilities. But the analyses, whereby careful consideration was given to how to preserve the independent judgment of the advertising professional, is highly instructive.
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