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?”

Responding to Evaluee Requests for Fitness-for-Duty Evaluation Records When the “Client” Controls Record Release: Caught Between (take your pick): the Board of Psychology and the Law of Contract; a Rock and a Hard Place; the Devil and the Deep Blue Sea (and on and on)…

by

A. Steven Frankel, Ph.D., J.D. & Adam Alban, Ph.D., J.D.

So you’re a forensic psychologist who does fitness for duty evaluations and you have contracts with insurance companies, colleges, agencies and other organizations to perform evaluations of their employees.  And, as is often the case, the contract you have, which was probably drafted by the other party, specifically states that the contracting company controls the records of the evaluations, such that you are not free to provide them to the evaluees (who are, after all, “evaluees” and not your “clients” – the contracting companies are the “clients”).

And so you perform one of these evaluations and the evaluee sends you a written request for records pursuant to California state law. The client company has its own reasons for refusing to release the records, which you nicely explain to the evaluee, who, in a fit if pique, files a complaint against you with the California Board of Psychology (“BOP”), which, in turn, sends you a letter indicating that California law requires that you provide a copy of the records within 15 business days from the written request[i] and reminds you of the dire consequences you may already face for failure to comply with the law[ii].

Consider the following questions: when you perform a fitness for duty evaluation are you providing health care services?  Is the evaluee your patient?  Is the resulting evaluation part of a health care record?  For the answers, read on…..

When Performing Forensic Evaluations, are Psychologists “Health Care Providers”?

Yes.  Under California law, licensed psychologists are regarded as “health care providers.” Health & Safety Code Section 123105(a)(7) states:

123105.  As used in this chapter:

(a) “Health care provider” means any of the following:

(7) A psychologist licensed pursuant to Chapter 6.6

(commencing with Section 2900) of Division 2 of the

Business and Professions Code.

Are Recipients of Services of Psychologists Considered to be “Patients”?

Yes.  Under California law, people who receive services of a health care provider are considered “patients”:

CA Health & Safety Code Section 123105(c) states:

“Patient” means a patient or former patient of a health care provider.

Are Psychologists’ Forensic Records Considered “Health Care Records”?

Under California law, records created by psychologists would be considered “health care records”:

(d) “Patient records” means records in any form or medium

maintained by, or in the custody or control of, a health care

provider relating to the health history, diagnosis, or condition

of a patient, or relating to treatment provided or proposed to

be provided to the patient.

But Aren’t Records of Forensic Evaluations Something Other than Health Care? Doesn’t HIPAA[iii] Have Anything to Say About This Problem?

HIPAA does, indeed, have something to say about this problem.  HIPAA (Code of Federal Procedure) says:

CFR Sec. 164.524:  Access of individuals to protected health information.

(a) Standard: Access to protected health information. (1) Right of

access. Except as otherwise provided in paragraph (a)(2) or (a)(3) of

this section, an individual has a right of access to inspect and obtain

a copy of protected health information about the individual in a

designated record set, for as long as the protected health information

is maintained in the designated record set, except for:

(i) Psychotherapy notes;

(ii) Information compiled in reasonable anticipation of, or for use

in, a civil, criminal, or administrative action or proceeding (emphasis

added)

So it would seem that HIPAA excludes records created for use in the legal system from patient access.  Two questions then arise:  1) are fitness for duty records created in “reasonable anticipation” of legal actions?; and 2) does HIPAA actually control in California?  The answer to the first question is likely to be “no,” as fitness for duty evaluations are most frequently performed without ensuing legal actions (although we know of no specific data bearing on this question).

As to the second question, the California Office of Health Information Integrity (http://www.ohi.ca.gov/calohi/Home.aspx) review of patient access to records issues supports California law over federal law, as California law is more protective of patient privacy than federal law.  Thus, California law probably preempts HIPAA in this respect and affords patients access to their records.

Isn’t There Any Case Law That Deals With These Issues?

Now that you mention it, the good news is that there is one case that we have found that speaks directly to this issue, but the case is from Nevada, and, as a result of the case, Nevada now holds that evaluees are “patients” and that they have a right of access to their records.

Patient - A “patient” in the physician-patient relationship is one “who consults or is examined or interviewed by a physician for the purpose of diagnosis or treatment.”  In Cleghorn v. Hess, 109 Nev. 544, 853 P.2d 1260 (1993), a broad interpretation of the term “patient” was adopted by the court, consistent with the legislature’s intent.  In this specific case, the term “patient” extended even to those members of a union who were examined by a psychologist to determine suitability for employment and no other reason.  Clearly the definition reaches beyond the traditional view of a sick or injured person being treated by a physician.  NRS 49.215.

Since Cleghorn v. Hess is Nevada law, it is not necessarily controlling in California, but there’s little doubt but that an evaluee who launches a legal assault on a psychologist who refused to release fitness for duty record would cite Cleghorn v. Hess to support his/her claim.  Note that the Court’s finding in this Nevada case is consistent with our reading of California law, above.

So Have You Guys Actually Seen BOP Actions Against Psychologists Who Inform Evaluees That They Aren’t Free To Release Records Without Authorization From The “Client”?

We have seen at least four cases in the past two years involving BOP letters to psychologists who refused to release records to evaluees because of threats by “clients” to sue the psychologists for breach of contract.  In none of these cases did the BOP file an “accusation” against the psychologists, but for different reasons in each case.  In one case, the psychologist retained an attorney who convinced the “client” that it wouldn’t be able to contract with any other psychologists to do these evaluations if it sued for breach of contract – that action simply would be too dangerous to future psychologists as agents of the company.  In another, the psychologist had contacted CPA for consultation and was told that he could not release the records.  That act of consultation and the reality of the restrictive records-release clause in the contract protected him.  In the third and fourth cases, the psychologists took the risks of releasing the records without involving attorneys and the “clients” took no action (whew!).

Would It Help If These Record-Release Restrictions Were In The Psychologists’ Informed Consent Documents?

Of course it would help!!  No guarantees, but it certainly is the standard of care to provide information like this in an informed consent document and to be certain that the evaluee understood it.

Summary And Recommendations

In our view, the contracts that are signed by psychologists who perform fitness for duty evaluations should all be reviewed for the presence of restrictive records-release clauses.  Psychologists should try to negotiate those clauses before signing and fully consider the implications of agreeing to such contracts.  Like most agreements, these contracts are negotiable.  A BOP defense of “but I didn’t feel like I could negotiate that” is a challenging argument to make and, frankly, not much of a defense.

Further, evaluators who do agree to such contracts should clearly have statements in their informed consent documents that state this issue and ensure that evaluees “knowingly and intelligently” consent before performing the evaluation.  A knowing and intelligent waiver includes providing the evaluee with enough information that would enable the evaluee to make an informed choice.  This might involve clearly documenting/discussing the nature of the evaluation and the recommendations it could produce, how the recommendations might be used, etc.  How do you know how much information you need to provide?  Consult, consult, consult.

In addition, psychologists confronted with evaluee demands for these types of records are best advised to seek consultation from colleagues and/or attorneys before deciding which courses of action to take.  The stakes are very high.  Remember that requests for health care records require a response within a specified period of time, so it is best to act immediately and not wait until the eleventh hour, at which point your options might be curtailed by law and/or schedule.

Finally, psychologists might wish to support legislation to classify forensic evaluations as non health care services.  The HIPAA position may also be helpful, but is not likely to be helpful enough, by itself, to influence the legislature to classify forensic evaluations as non-health care services.  Joining forces with other disciplines in which forensic practitioners face these issues might also be in order.  We all have a stake in molding the laws that govern our professions.

Steve Frankel, Ph.D., J.D., practices both law and clinical/forensic psychology in the San Francisco Bay area.  A Clinical Professor of Psychology at USC and Adjunct Professor of Law at Golden Gate University, he has authored over 50 articles, chapters and books and has provided continuing education in law, ethics, trauma and forensic psychology for over ten years.

Adam Alban, Ph.D., J.D., is a practitioner of law and clinical/forensic psychology in San Francisco.  He also owns and operates www.clinicallawyer.com an online resource for mental health professionals.  He previously functioned as a clinical psychologist and law clerk for the General Counsel of the District of Columbia Department of Mental Health in Washington, DC.

Professional Wills:  Protecting Patients, Family Members and Colleagues
A.    Steven Frankel, Esq., & Adam Alban, Esq.,

This paper addresses events that most don’t want to consider.  If and when these events are considered, anxiety usually follows, as both the events and the act of planning for them are so daunting.  The events?:  unanticipated interruptions or terminations of practice due to death or disability. (There!  We said it out loud.)  So please take a few deep breaths, perhaps a warming cup of coffee or tea, and stay with us while we take up an increasingly important aspect of “good practice.”

First issue:  in the event of one’s unanticipated termination of practice, who bears the responsibility for the preservation, maintenance, provision and ultimate destruction of a psychiatrist’s records and business concerns, thus serving the interests of the psychiatrist and his/her patients?

Patients certainly have an interest in their records.  Some might want them to support disability claims, to support litigation, for continuity of care, or for any number of reasons that our legislature views as important enough to grant liberal patient access.  If patients find that their psychiatrist has unexpectedly terminated practice, they make inquiries as to how to obtain their records.  Many may contact the California Medical Board. The Board’s website offers the following information:

“How do I get my medical records if my doctor moves away/retires/dies?

“…If the doctor died and did not transfer the practice to someone else, you might have to check your local Probate Court to see whether the doctor has an executor for his or her estate. You could then contact the executor to see if you can get a copy of the records. Depending on how much time has passed, whoever is appointed as the custodian of records can have the records destroyed.”

In effect, the Medical Board is informing patients that a physician’s executor, trustee or “personal representative” bears the responsibility for preserving, maintaining, providing and, after an appropriate period of time, destroying records.

Assuming that you have already done the type of estate planning that protects family members and other beneficiaries after one’s death, is your personal representative aware of and competent to perform the duties and responsibilities required of him/her?  Will your estate provide for funds that are needed immediately to manage the closing of practice?  And if, rather than terminating practice due to unanticipated death, the actual cause is unanticipated disability, who will then take responsibility for these duties, with the appropriate training and knowledge?

Second issue: protecting psychiatrists’ family members:

Sadly, we receive many calls from the spouses/partners of psychiatrists who are not themselves psychiatrists, but who find themselves in the terrible predicament of having an unexpected termination of their spouse’s/partner’s practice.  They tell us that the office landlord is demanding rent payments and threatening to place office furniture in the streets and records in the trash, that calls are coming in from patients seeking records (and wishing to express condolences), etc.  All of this is happening at times of grief and loss.  Where their spouses/partners have not implemented a professional will, with designated executor(s) competent to manage the closing of the practice, the management of the records and the business details, they feel lost.

Third issue:  protecting colleagues:

The colleagues of psychiatrists often find themselves thrust into situations in which they feel some responsibility and interest in assisting colleagues whose practices have been interrupted by unanticipated death or disability.  Unless there has been a thorough preparation of a professional will, with instructions as to how to find records, keys to the office, computer passwords, financial records, etc., the helpful colleague also becomes overwhelmed and at a loss in the midst of grief and loss.

The Professional Will: a lot of work that can save a great deal of pain.

The mental health field in general has provided an arena for the development of a plan for the managed termination of practice in times of need.  Among non-physician mental health professionals, all national professional societies have enacted ethical standards requiring advance planning for unanticipated terminations of practice. In some states, physicians are mandated by law to make such preparations.  For example, Iowa physicians are subject to the following statute:

“2004.
a. A physician shall retain all medical records, not appropriately transferred to another physician or entity, for at least seven years from the last date of service for each patient, except as otherwise required by law.
b. A physician must retain all medical records of minor patients, not appropriately transferred to another physician or entity, for a period consistent with that established by Iowa Code section 614.9.
c. Upon a physician’s death or retirement, the sale of a medical practice or a physician’s departure from the physician’s medical practice:
(1)    The physician or the physician’s representative must ensure that all medical records are transferred to another physician or entity that is held to the same standards of confidentiality and agrees to act as custodian of the records.
(2)    The physician shall notify all active patients that their records will be transferred to another physician or entity that will retain custody of their records and that, at their written request, the records will be sent to the physician or entity of the patient’s choice.”

And in New York:

`“The Rules of the Board of Regents on Unprofessional Conduct, §29.2(a)(3) `require that professionals who retire from or sell a practice must make provision for records to be maintained and accessed, if requested. The obligation to maintain records is not changed by the retirement or sale of practice.

Further, professionals should also make provision for the maintenance and destruction of their patients’ records in the event of the professional’s death.”

While such legislation has not as yet been enacted in California, the considerations discussed above strongly support the view that it is good practice to create a professional will.  If you are like most colleagues in California, and if anxiety and/or denial hasn’t caused you to look for another article to read, please read on.  This is a solvable problem.

We are aware of a number of resources available for those interested in putting together a professional will or contingency plan.  Since non-physician mental health professional societies have enacted relevant ethical standards, there are some local non-physician professional associations which have standing committees on these matters.  One such example is the San Diego Psychological Association, which has been assisting members through its “Psychologist Retirement, Incapacitation or Death” committee.  This may be a valuable model for psychiatry’s district branches. Other local associations may have similar resources, and this is yet another reminder to join your local district branch, as this service, by itself, is worth the cost of membership.

While local organizations can provide useful templates and how-to guides, psychiatrists don’t necessarily have to go through these organizations to construct a valid professional will .  You may choose to work with a colleague to achieve much the same result.  Professional wills are essentially a list of instructions that answer the following questions:

1.) In the event you are unable to fulfill your professional responsibilities, either through incapacitation or death, who is the professional colleague you designate to assume responsibility for your practice?  This should be someone you trust, who has agreed to undertake the responsibility, and who you feel comfortable discussing professional matters with your patients.  Because your designee will need to make professional communications, they should be similarly licensed (i.e.,  not an attorney, accountant, etc.).

2.) What administrative tasks does your designee need to know to be able to wind down or pause your practice?  Where are your keys?  What are the passwords on your computer(s)?  Where do you keep patient information?  How do you manage billing and what critical financial transactions must be completed (e.g., rent, communications with 3rd party payors, etc.)?  For forensic practitioners, do you have retainer balances that should be returned?  Do you have a password on your voicemail?

3.) How do you want your designee to communicate this information to your patients?  Should the notifications be made in person, letter, and/or email?  Remember that these notifications must be made sensitively.

4.) Are there colleagues you want your designee to contact?  Who is your professional liability carrier and how should they be notified?  How about any managed care panels on which you serve?

5.) Do you have an attorney for your practice?  If so, and if your attorney does not already know about your incapacitation and/or death, he/she should be notified immediately.

6.) How is your designee to be paid?  Have you set aside funds to help your designee with these time-consuming tasks?  Consider purchasing a very small life insurance policy with your designee as the beneficiary and/or set aside some funds from your estate for this purpose, with instructions to your estate-planning attorney to make the funds available as soon as possible.

7.) If your designee cannot be found or is unavailable, who are your second and third backups?  Do they know they have been named?

8.) What are the circumstances under which your professional will springs into effect?  Death surely springs your professional will, but what about injury?  How will your designee be notified that s/he is  “on duty?”

Other things to remember:

A.) If you have any questions, your professional will should be reviewed by an attorney experienced in mental health law to ensure that your professional will does not conflict or expose your personal will.

B.) You should periodically review your professional will with your designee to make sure the information contained in it is current.

C.) Your professional will should be signed by you and your designee(s).

We hope that you’ve made it this far and that you actively consider the issues we’ve discussed, as do your patients, families and colleagues.

IMPORTANT: This website is for basic information only. Nothing in this website should be construed to be formal legal advice, nor does it create an attorney-client relationship. Please see the “Important Information” page at the top of the screen.

By way of background, someone on an email discussion group posed a question/statement that it is often difficult to ascertain the standard of care and remarked that the question of “what to do” is often murky, at best.  As an example, he remarked that he often wonders about whether he is required to have a segment of his voicemail message suggesting to callers that “if there is an emergency, please hang up and dial 911.”  He wondered what was the standard of care surrounding such messages.  In other words, is it a standard of care for psychologists that we are required to have those disclaimers on our voicemail messages?

In response, someone posted that some people do, whereas some people don’t, and bemoaned his own observation that it would be fairly easy to find a psychologist expert who would say that it would be a violation of the standard of care to not have such an outgoing greeting.  He said that he felt that psychologists were much more likely to turn on one another for alleged ethics violations than are physicians, and (rhetorically) asked why.

My response follows:

I think this is due to a number of reasons, but I’ve always suspected that two of them are primary:

1.) Psychologists use ethics as a means of regulating the profession.  Other healthcare professions, such as medicine, use data-driven science to answer questions about practice competency.  This basically means that (when it comes to questions of discipline), as a profession, we’ve decided to eschew questions about what works, and have instead decided to go with the metric of “what’s ethical.”  I think this is kind of backward, but it’s what our profession has chosen.  Not that I think ethics are bad, but I think questions of professional discipline should be determined according to the data that backs up our services, as well as professional misconduct.

Because our profession relies almost solely on ethics, that means that if you do “past lives therapy” with a patient and tell her that she’s probably depressed because she was Joan of Arc in a past life, proceed to do therapy based upon that assumption, and end up telling a colleague about your patient, you can be disciplined for the violation of confidentiality but probably not for telling your patient that she needs treatment because she used to be Joan of Arc.  In my opinion, that’s bananas.  I think the violation of confidentiality is (by far) the lesser of the two offenses, if it is even one at all.

I think that by relying solely on ethics, which are often inherently subjective, we’ve created a system where we constantly strive to be the “most ethical,” rather than to provide the most effective treatment.  I don’t think it’s an accident that the most respected members of our professional organizations are often the ones who advise on matters of ethics, as opposed to the people doing really great clinical work (or teaching how to do really great clinical work).  (Please don’t misinterpret this as a disparaging comment against those who advise on matters of ethics.  I believe they are wonderful colleagues.  I just think our focus - as a field - is misplaced.)  If we focused on data-driven science, questions of professional conduct would be answered quite differently.  But given the realities of our profession and the decisions we (collectively) have made, we are where we are.

2.)  The second reason is that many experts don’t understand the difference between “most ethical” (whatever that means) and “standard of care.”  In my opinion, the way ethics should be taught/dispensed is as a barometer for what most people are doing.  So in other words, when you consult on matters of professional conduct your ethics expert should give you advice on the standard of care.  Ethics experts should be really well-connected colleagues who know what most people are actually doing.  For example, if you go to an ethics expert and ask how to handle emails from a patient, the expert should say something like, “here’s what most people are doing……”  Unfortunately, the reality is that when most psychologists go to an “ethics expert” they receive the most conservative advice possible, and that advice is often totally independent of what people are actually doing.  To that extent, it’s very poor advice because it makes people think that practice standards are based on what people should be doing, as opposed to what people are actually doing.

So, to answer the rhetorical question, I think the answer is that for a licensing board complaint in medicine you are much more likely to get an expert that says “providing 911 on an answering machine is a good (or bad) idea because we know that…..”

In contrast, an expert in a psychology licensing board action is more likely to say that “Dr. ____, by not providing a reference to 911 on his/her answering machine, violated the APA Ethics code section __, was acting unethically, and therefore violated the standard of care. The best course of action would have been to………..”

I hope this clears things up.

IMPORTANT: This website is for basic information only. Nothing in this website should be construed to be formal legal advice, nor does it create an attorney-client relationship. Please see the “Important Information” page at the top of the screen.

by Adam Alban, Ph.D., J.D.

What is “the standard of care?”  Do you know?  Odds are, even if you’ve never heard the term, you’ve found yourself wondering about it.  If you’ve ever asked yourself, “what is the right thing for psychologists to do when ________?”, you’ve asked about the standard of care.  The standard of care is the answer to most of the “should” questions in our profession.

“How should we handle emails from patients?”

“How should children be interviewed?”

“Which norms should be used?”

“Should I see the cousin of a patient?”

The answer to all of these is that, no matter what you decide to do, you must at least meet the standard of care.  This begs the question, “what is the ‘standard of care?’”

The standard of care is a legal concept that is used to evaluate whether a professional’s activities meets the “standard.”  In a nutshell, if the things you are doing are as good as the standard of care, you are doing just fine.  As you might guess, there are standards of care for just about everything.  There are standards of care (thresholds of professional conduct) for recordkeeping confidentiality, etc.  Almost everything.

To put it bluntly, the standard of care is what most reasonable psychologists under similar circumstances do.  If you do what most of your colleagues do, you are meeting the standard of care.  Note that this isn’t want most of your colleagues think they should do, or what an expert has identified as a “best practice.”  It’s not an aspirational standard.  The standard of care is what most of your colleagues are actually doing.

Naturally, there are advantages and disadvantages to such an approach, but all things considered, the metric of “what a reasonable psychologist under similar circumstances would do” is a fairly good benchmark for what you should be doing.

A significant problem, however, is that many of our colleagues who are trying to be helpful don’t articulate the difference between the standard of care and “best practices.”  Experts offer opinions on all sorts of things, particularly on matters of professional conduct and ethics, without specifying that they are articulating (what they believe to be) an optimal approach.  This is unfortunate because when we conflate “the standard of care” with “best practices,” the perception can become the reality.  It’s important to state the difference.

An example might help to illustrate the point.  Suppose I offer the following (hypothetical) ethics opinion:

“Any psychologist that offers an ethics or professional standards opinion, without articulating whether a difference exists between his/her proffered opinion and the standard of care, may be acting unethically.  The failure to articulate whether a difference exists potentially violates several provisions of the APA ethics code.  Because a “best practice” might be misconstrued as a “standard of care,” § 1.01 requires experts offering opinions to take steps to mitigate this risk.  Ethics experts that fail to articulate this difference because they are not aware of this difference are potentially acting outside the scope of their expertise, and thus may also be in violation of § 2.01, which requires psychologists to act within the boundaries of competence.  Similarly, psychologists that offer an opinion on the standard of care or a best practice must state the basis for such an opinion.  Section 9.01 of the Ethics Code requires that psychologists substantiate their opinions/findings; any ethics expert who articulates an opinion on a standard of care is required to substantiate such a finding (i.e., how does he/she know what most reasonable psychologists in similar circumstances are doing).  Failure to abide by these sections of the ethics codes when offering an opinion on ethics may, inandof itself, be a violation of the ethics code.”

Careful readers will note a certain irony, which is that my hypothetical ethics opinion suffers from the very problem this article addresses: it fails to appreciate the difference between a “best practice” and the “standard of care.”  I might personally believe that all ethics experts should articulate this very important difference between “best practices” and “the standard of care,” and that failure to do so is an egregious error.  But if most reasonable psychologists in similar circumstances (i.e., ethics experts) fail to make the distinction(s) that I wish they would make, then by definition my opinion on what constitutes the standard of care for ethics experts is inaccurate.  Citing to the ethics code doesn’t change the fact that if very few psychologists do what I think they should do, then my assessment of the standard of care is just plain wrong.  I should have labeled my “ethics” opinion as a tip for “best practice,” or even an aspirational wish.

So let’s be careful out there.  Remember to be aware of the standard of care and to not mistake a “best practice” for the minimal bar of competence.

(CLICK HERE FOR PART 2 OF THIS ARTICLE)

IMPORTANT: This website is for basic information only. Nothing in this website should be construed to be formal legal advice, nor does it create an attorney-client relationship. Please see the “Important Information” page at the top of the screen.

In California, the answer to this question is “yes.”  If you have specific concerns about how this applies to any given situation you really need to consult with an attorney.

But as a general matter, practitioners can usually use collection agencies to collect on debts owed by patients so long as (1) it isn’t otherwise disallowed by law, (2) the patient has agreed to this in the office policies/informed consent document that was signed at the outset of the treatment relationship, and (3) the information provided to the collection agency is minimal in nature and doesn’t disclose confidential material.  (Remember that the HIPAA regulations have a very good description of what information can be provided for payment purposes.)

Remember, just because you can use a collection agency doesn’t mean that you necessarily should, particularly if such a decision doesn’t necessarily comport with your personal style.  There’s nothing necessarily wrong with using a collection agency, but the likelihood for conflict with your patient will probably increase.  After all, if you’ve ever received a call from a collection agency or had to deal with these folks you probably know that it’s not a pleasant experience and it doesn’t engender good will between you and the party claiming the debt.  Be prepared to kiss your therapeutic relationship goodbye.

But then again, if you worked with someone and they promised to pay you for your services, why shouldn’t you be able to collect what you are owed?  I can think of plenty of reasons to pursue payment, just one of which is that you work for a living and that if you don’t get paid, you aren’t able to pay your bills.

Chief among the cautionary reasons to avoid using collection agencies is the concern that the patient will file some sort of complaint against your license, which you will then have to spend time defending.  It’s possible that this might happen.  I’ve heard of (and defended other psychologists from) bogus complaints.

In most respects this is a business decision.  How do you want to run your practice?  How comfortable are you with conflict?  Do you want to collect as much of what is owed to you?  Are you willing to forgive debts and walk away from income you have earned?

If your personal style is conflict-averse, and/or for other reasons you decide that collection agencies aren’t services you want to use, perhaps this guideline might be of help: never let debts accrue that you aren’t willing to walk away from.  Insert a line into your practice policies document where your patients agree that you will stop treatment upon unpaid bills of ______ (insert time/amount).

But whatever you decide to do, make it a conscious decision.  You probably work with your patients to take ownership over their lives, so why can’t you?  Chart your own course for your practice.

IMPORTANT: This website is for basic information only. Nothing in this website should be construed to be formal legal advice, nor does it create an attorney-client relationship. Please see the “Important Information” page at the top of the screen.

So how’s it feel to be in breach of the APA ethics code and California law?
Professional Wills: The Ethics Requirement You Haven’t (Yet) Met

by Adam Alban, Ph.D., J.D. & A. Steven Frankel, PhD., J.D.

It’s unfortunate, but true: the vast majority of psychologists reading this article are not in compliance with a significant provision of the APA ethics code.

Most psychologists aspire to have a fairly good record-keeping system, as well as procedures for maintaining the confidentiality of those records. As a profession, psychologists tend to be quite concerned about record keeping. This concern is appropriate. Unlike some businesses, the information contained in practice-related records is highly sensitive and deserving of great care.

It is distressing, then, that many psychologists have not made arrangements for the care of these records if the psychologist is suddenly and unexpectedly unable to continue to practice, such as when the psychologist dies or is disabled. This may be due to a number of factors, such as a general reluctance on the part of many people to engage in end of life planning, communicate advanced medical directives, write wills, find colleagues who will become executors of the professional will, etc. But procrastinate or not, this is something that we all must do.

While some states, such as Oregon, specifically direct psychologists to prepare a professional will, California is not as explicit. Rather, the direction for psychologists to prepare for emergencies can be found in the profession’s code of ethics. The American Psychological Association code of ethics does not specifically direct psychologists to have a “professional will.” Psychologists are instead expected to “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.” (APA 2002 Ethics Code 3.12) Psychologists are also directed to “make plans in advance to facilitate the appropriate transfer and to protect the confidentiality of records and data in the event of psychologists’ withdrawal from positions or practice.” (APA 2002 Ethical Principles of Psychologists and Code of Conduct 6.02(c))

The presence of these instructions in the ethics code is significant because the California Board of Psychology has codified the APA Code of Ethics as the standard for the determination of misconduct and the standard of care.  Yes, that’s right: the APA Code of Ethics is part of California law for psychologists.  If you aren’t abiding by it you are breaking the law.  It is true that once you are dead the threat of disciplinary action isn’t likely to motivate you to draw up a plan.  However, there are important reasons for making some advance plans that have little if anything to do with licensing boards.

Reason number one is that it’s just plain easier. After a death or major accident the last thing anyone (especially a grieving family member) wants to have to deal with is the thorny issue of confidential records, office leases, office furniture, obtaining releases from patients/clients to make referrals, etc.

Reason number two is that it is good for your patients/clients. The death of a therapist is likely to be very difficult for patients/clients, and the designation of a colleague to manage professional affairs is likely to help the transition and grieving process.

Reason number three is that it’s a good thing to do for your colleagues. Occasionally a trusted colleague is asked to help sort out professional affairs, and a lack of instructions, access to office and file keys, computer codes, etc., can make her/his job quite difficult.

Reason number four is that even if you are incapacitated or dead, your work survives you.  If you are incapacitated you might one day return to work; hopefully your license will be unencumbered by Board action.  Further, there is exposure on the part of your estate if an angry patient/client wishes to file a malpractice case against you for not anticipating your current condition. Your malpractice insurance would defend you, as long as such a suit was filed within the statute of limitations, but there will be a point at which the policy will not cover, at which time the costs come out of your estate, involving your family.

Clearly, this is a big issue.  If you are like the overwhelming majority of all psychologists in California, this is unaddressed.  If denial and/or anxiety hasn’t yet caused you to turn the page and move to another article, please do read on.  This is a solvable problem.

We are aware of a number of resources available for psychologists interested in putting together a professional will or contingency plan.  Local professional associations sometimes have standing committees on these matters.  One such example is the San Diego Psychological Association, which has been assisting members through its “Psychologist Retirement, Incapacitation or Death” committee.  This is a valuable resource for psychologists in San Diego, and possibly for psychologists throughout California.  Other local associations may have similar resources, and this is yet another reminder to join your local association.  This service, by itself, is worth the cost of membership.

While local organizations can provide useful templates and how-to guides, psychologists don’t necessarily have to go through these organizations to construct a valid professional will.  Psychologists may choose to work with a colleague to achieve much the same result.  Professional wills are essentially a list of instructions that answer the following questions:

1.) In the event you are unable to fulfill your professional responsibilities, either through incapacitation or death, who is the professional colleague you designate to assume responsibility for your practice?  This should be someone you trust and who you feel comfortable discussing professional matters with your patients/clients.  Because your designate will need to make professional communications, they should be similarly licensed.

2.) What administrative tasks does your designee need to know to be able to wind down or pause your practice?  Where are your keys?  What are the passwords on your computer(s)?  Where do you keep patient information?  How do you manage billing and what critical financial transactions must be completed (e.g., rent, communications with 3rd party payors, etc.)?  For forensic practitioners, do you have retainer balances that should be returned?  Do you have a password on your voicemail?

3.) How do you want your designee to communicate this information to your patients/clients?  Should the notifications be made in person, letter, and/or email?  Remember that these notifications must be made sensitively.

4.) Are there colleagues you want your designee to contact?  Who is your professional liability carrier and how should they be notified?  How about any managed care panels on which you serve?

5.) Do you have an attorney for your practice?  If so, and if your attorney does not already know about your incapacitation and/or death, he/she should be notified immediately.

6.) How is your designee to be paid?  Have you set aside funds to help your designee with these time-consuming tasks?  Consider purchasing a very small life insurance policy with your designee as the beneficiary and/or set aside some funds from your estate for this purpose, with instructions to your estate planning attorney to make the funds available as soon as possible.

7.) If your designee cannot be found or is unavailable, who are your second and third backups?  Do they know they have been named?

8.) What are the circumstances under which your professional will springs into effect?  Death surely springs your professional will, but what about injury?  How will your designee be notified that s/he is  “on duty?”

Other things to remember:

A.) If you have any questions, your professional will should be reviewed by an attorney experienced in mental health law to ensure that your professional will does not conflict or expose your personal will.

B.) You should periodically review your professional will with your designee to make sure the information contained in it is current.

C.) Your professional will should be signed by you and your designee(s).

In the coming months, you will hear increasingly about the Professional Will obligation and ways to cope with it.  Many of our colleagues are aging and moving toward retirement.  Do yourself, your family and your patients/clients a favor: take care of it.

Adam Alban, Ph.D., J.D., is a practitioner of law and clinical/forensic psychology in San Francisco.  He also owns and operates www.clinicallawyer.com, an online resource for mental health professionals.  He previously functioned as a clinical psychologist and law clerk for the General Counsel of the District of Columbia Department of Mental Health in Washington, DC.

Steve Frankel, Ph.D., J.D., practices both law and is an ABPP Diplomate in clinical/forensic psychology in the San Francisco Bay area.  A Clinical Professor of Psychology at USC and Adjunct Professor of Law at Golden Gate University, he has authored over 50 articles, chapters and books and has provided continuing education in law, ethics, trauma and forensic psychology for ten years.  His website is www.sfrankelgroup.com

IMPORTANT: This website is for basic information only. Nothing in this website should be construed to be formal legal advice, nor does it create an attorney-client relationship. Please see the “Important Information” page at the top of the screen.

Let’s be clear about something: your employer’s policy covers your employer, not you.  If you get into trouble your employer’s policy may cover you if it is in the best interests of your employer.

There are a number of different reasons why your employer may choose to defend you:

• In many situations an employer will be held responsible for the acts of an employee.  The legal doctrine that applies in this situation is called “respondeat superior,” and essentially means that if an employee does something wrong in the course of their employment the employer may ultimately responsible.  This makes sense: employees often work on behalf of their employer so the employer should be held responsible.  Under these situations the employer has a lot to loose and it is in the employer’s best interest to defend their employee.  But note that the interests the employer is actually defending is his/her/its own.  It just happens to be the case that the interests of the employee and employer are in alignment.

• Your employer may also calculate that, as a purely business decision, it makes financial sense to defend you.  You might be forced to take time away from work or other revenue-generating activities to defend yourself.  Your employer might simply wish to protect the bottom line and minimize losses.  Under these situations your employer chooses to defend you.

• Your employer might choose to defend you as a matter of loyalty.  Fortunately for many employees, employers choose to defend their employees as a matter of principle.  You work hard for your employer’s interests and your employer returns the favor.  It’s a very nice thing to do; cynicism hasn’t totally carried the day.  Employers that defend their employees also reap the benefits of improved workplace morale, lower turnover, etc.  But, again, this is a employer-driven choice.

Alas, if only employers and employees always got along so well….

We all wish it was the case that employers and employees made mutually beneficial commitments to each other that withstood the test of time.

We all wish employers didn’t sometimes turn on their employees (and vice versa).

We all wish that scapegoating didn’t occur.

Here are just a few of the many situations where employees are on their own:

• A defense is needed after the employee has left.  In my experience it’s fairly unusual that employers defend former employees unless the employer’s defense relies upon a finding that the employee did nothing wrong.

• There is a change in management or supervisors: relationships sour.

• Here’s a(n unfortumately) common situation: a hospital or health organization wants to dismiss an employee, and the efforts to do so involve searching for and identifying “wrongdoing” on the part of the employee.  In these cases management needs “cause” to fire an employee (this is often the case if the employee is a member of a union) and management convenes a peer review committee to make the “cause” official.  While this is ostensibly done to document the basis for the firing or dismissal, the damage doesn’t end there: peer-review committees that make a finding against a health care provider are often required to disclose that information to the Medical Board of California, which then coordinates with the appropriate licensing agency to investigate.  If a licensing agency is investigating you, you probably want an attorney.  If you have your own insurance and your professional liability policy covers board actions or administrative actions you might not have to pay for your defense out of pocket.

So even if you aren’t in private practice, it’s still a good idea to consider a professional liability policy.  Hope for the best but prepare for the unexpected.

IMPORTANT: This website is for basic information only. Nothing in this website should be construed to be formal legal advice, nor does it create an attorney-client relationship. Please see the “Important Information” page at the top of the screen

I and a number of other attorneys who work with psychologists in California have noticed a significant trend.  We have become aware of a significant number of Board of Psychology (BOP) denials of supervised professional experience (SPE).

These denials are significant enough in number and scope that it seemed appropriate to author this post to inform the training community of the issue. A large number of psychological assistants (and their supervisors) have been denied SPE hours. This post offers an explanation as to what has happened to many applicants in the hope that others who have yet to apply can avoid the problem that has befallen so many others.

First, an explanation:

Prior to the commencement of supervision a psych assistant and her/his supervisor must sign a supervision agreement detailing the clinical services to be offered and other important information.  The BOP offers a supervision agreement form on its website that captures this information.  Following the completion of supervised experience this form is turned in to the BOP, along with the other required documentation.

Here’s the problem that many are facing:

When applying for licensure some applicants and their supervisors have been unable to locate the form that was signed at the beginning of supervision.  In some cases the form was signed over a year ago and cannot be located.  To remedy this, many applicants have been re-downloading the supervision agreement form from the BOP’s website and filling it in with the same information that was previously filled in; they have tried to re-create the form.  The problem with doing this is that the BOP has made minor changes to the form and is aware that the forms that many applicants are turning in are backdated.  The BOP’s response in many cases has been to deny all hours from supervision agreement forms that are backdated.  In some cases this has meant that over a year’s worth of supervised experience is lost.

What to do:

Every case is different, but it seems clear that you should NOT be backdating  supervision agreement forms.  Those who have done this often have very good reasons for having done so, but the BOP appears to perceive this as an act of dishonesty on the part of both supervisor and psych assistant (i.e., not as an attempt to recreate a lost form that was previously properly signed and completed).  If you or your supervisor(s) have lost the supervision agreement forms, seek guidance from the BOP or from an attorney about what to do.

If you have been denied SPE hours by the BOP because of this issue you may have some options.  The BOP may re-evaluate these denials on a case-by-case basis, and depending on individual facts and circumstances may choose to grant hours that had previously been denied.

This is also a good time to become active in state and local professional associations.  CPA, for example, is aware of this issue and is doing its part to communicate with the BOP.  CPA frequently coordinates activities with local associations, so if you aren’t a member of CPA please contact your local organization to get involved.

IMPORTANT: This website is for basic information only. Nothing in this website should be construed to be formal legal advice, nor does it create an attorney-client relationship. Please see the “Important Information” page at the top of the screen.

Some clinicians are shocked to discover that their professional liability (sometimes known colloquially as “malpractice insurance”) policy does not cover license complaints.

Most policies provide basic coverage in case you are sued in civil court.  This is usually what practitioners think about when they think of “malpractice insurance.”  If your patient files suit alleging that you violated your professional responsibilities, your professional liability coverage will usually provide coverage.

Board complaints, however, may be another matter.  Board complaints are handled quite differently than civil suits.  Licensing boards are administrative agencies, and because of this professional liability policies treat them differently.  Some professional liability policies provide limited basic coverage for board complaints, whereas others only provide coverage as a rider or option on the basic policy.

When confronted with a licensing board investigation, many clinicians contact their professional liability carrier only to be informed that they have no coverage for these complaints.  The extent to which professional liability policies cover board complaints vary widely.

Here’s a tip: find out if you have coverage. Find out if your policy covers “licensing board complaints” or “administrative actions.”  If not, get coverage; the cost is usually minimal and worth the expense.

IMPORTANT: This website is for basic information only. Nothing in this website should be construed to be formal legal advice, nor does it create an attorney-client relationship. Please see the “Important Information” page at the top of the screen.