© gerald p. koocher, 2014, all right reserved ethical challenges in 21 st century integrated...

© Gerald P. Koocher, 2014, all right reserved


Ethical Challenges in 21st Century Integrated

PracticeGerald P. Koocher, Ph.D., ABPP

DePaul University

www.ethicsresearch.com

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 inter-professional 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

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



Key Ethical Challenges Associated with the Patient Protection and

Accountable Care ActCompetence 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.

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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 (?)

7Robocop and mermaid pet a unicorn.

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

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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 CodesScience 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?

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Health Insurance Portability and

Accountability Act (HIPAA) and ePHI

Kennedy-Kassenbaum

Act of 1996

AKA: 45 C.F.R.160

© Gerald P. Koocher, Ph.D., 2014, All Rights Reserved

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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…”


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Privacy Rule Basics:

•Psychotherapist-Patient Privacy Protected in 3 ways:• Minimum Necessary Disclosure

• State Law Pre-emption

• Special Protection given to “Psychotherapy Notes.”“Psychotherapy Notes.”


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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.


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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


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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


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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.”


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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].”


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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.


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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.


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Sample Fines for HIPAA Privacy and Security Violations

• Parkview Health System, Inc. has agreed to settle potential violations of the 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.

• http://www.hhs.gov/ocr/privacy/hipaa/enforcement/examples/affinity-agreement.html


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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


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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

• An HER function that limits personnel access to need-to-know elements of record (clerk/clinician)


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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


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Electronic issues in malpractice claimsCRICO, 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


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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.


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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..


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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


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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

• Novel hazards:• Are you ready to see edited clips of yourself on YouTube?


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Increased engagement of behavioral health in primary care

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

To whom do I owe a duty of care and in what hierarchical sequence?


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Society at large?All of the above?

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.

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Significant Claims/ New Trends

Boundary ViolationsSuicideHomicideDual RelationshipBilling – Medicare InvestigationsCopyright/Trademark Infringement (e.g., website

images and music)


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Improper treatment

Wrongful death

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

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Data from the Massachusetts Board of Registration

2007 - 2013

121 issues raised in 112 separate casesCharge N Typical Penalty

Alcohol or substance abuse 3 Surrender or revocation of license

Allowing unlicensed practice 5Reprimand/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 8Supervised 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 4Reprimand, censure, public reproval, letter of

admonition

121 issues raised in 112 separate cases

Sample Actions by Massachusetts Board of Registration

• Joseph F. Doherty, CambridgeThe 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, ArlingtonThe 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, NewtonUnder 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.

Kentuckyhttp://psy.ky.gov/Pages/disciplinary.aspx

• Final Order 7/3/2014

• Final Order and Settlement Agreement5/7/2014


• Cease and Desist 2/28/2013

• Settlement Agreement 7/23/2012







• Cease and Desist 12/30/2010




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

•Gross negligence• Extreme departure from usual professional conduct most

practitioners would not do it.


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Understanding Professional Liability Insurance

• Occurrence Policies

• Pay once, covered “forever”

• Claims Made Policies

• Must keep coverage current

• Tail coverage

• (trailing claims)

• Nose coverage

• (prior acts)© Gerald P. Koocher, Ph.D., 2014, All Rights Reserved

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2012

2013

2016

2015

2014

Risk acc

umulates ove

r years

of practi

ce.

2015

2016

2017

2018

Risk declines after practice ceases.

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 disabled.


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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.”


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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.


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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


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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.


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Bottom line: know the jurisdictional rules that apply to your practice.

• Including electronic or remote practice!



Telehealth practice

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 computers78

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.ama-assn.org/amednews/2012/03/05/prsa0305.htm



Online and Social Media Issues

Who will search you?

Who will you search?

Engaging with social media

But beware…

•Site security

•Boundary issues

•Appropriate marketing

•Blogging challenges

•File transfer and e-mail confidentiality


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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.


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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

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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.


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© Gerald P. Koocher, 2014, all rights reserved

Just a few sample options for data collection

• 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%20Revenge%20on%20sites%20such%20as%20LinkedIn,%20Google+%20and%20Yelp.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)


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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.© Gerald P. Koocher,

Ph.D., 2014, All Rights Reserved

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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.


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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.


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Potential Response Strategies

• Reactive 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 and optimized web site you control.

• Collect consumer satisfaction data.

• Don’t make promises you can’t keep.

• Remember that the Internet is forever© Gerald P. Koocher, Ph.D., 2014, All Rights Reserved

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how to respond to an ethics or licensing board inquiry.

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.