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Ethical Considerations in Rehabilitation: A Clinical Perspective for Therapists

Ethical Considerations in Rehabilitation: A Clinical Perspective for Therapists
Kathleen Weissberg, OTD, OTR/L
February 4, 2021

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Principles of Ethics

Ethics guide the determination of right and wrong in moral life. Our moral life extends into our professional life, and choices are dependent upon contextual consideration. We will take a look at the various basic principles of ethics as they relate to healthcare and very specific to occupational therapy.

Autonomy

  • Moral right to make choices and decisions about a course of action
  • Allowing and enabling patients to make their own choices
  • Desire to “help people” sometimes results in diminished respect for autonomy

The first principle we are going to talk about is autonomy. This refers to one's moral decision to make choices and decisions, or our right, if you will, about one's own course of action. In other words, it is our right to self-determination. Respect for autonomy dictates that we refrain from interfering with an individual's own choices. In therapy, this means allowing and enabling a patient, a client, resident, or whatever you want to call the person we treat to make their own choices. The desire to "help" people sometimes results in diminished respect for autonomy. For example, should a patient choose not to participate in therapy, our efforts to convince them otherwise show our lack of respect for their autonomy. This has to be first and foremost.

Nonmaleficence

  • Do no harm
  • Harm encompasses a range extending beyond physical or psychological harm, including harm to reputation, liberty, or property.
  • Our opinions regarding “harm” may differ from our patients

The next principle, and you will hear this again when we start talking about the OT code of ethics, is nonmaleficence. This embraces the message that is extrapolated from the Hippocratic Oath, do no harm. This ethical principle is one of the oldest. It reminds us that if we cannot help our patients, at the very least, we owe them a duty not to harm them or not to make them any worse than they were before they sought our services. Harm encompasses a range of conditions extending beyond physical or psychological. For example, this could include harm to somebody's reputation, harm to liberty, or harm to property. The question of which harm or whose harm leaves this open to many different interpretations. This is especially true when dealing with patients who may not be able to make their own decisions. Our opinions of what constitutes "harm" may differ from our patient's opinion or their interpretation of harm.

Beneficence

  • Duty to prevent harm to others, remove harm from others and promote good
  • Obligation ends where action can bring harm to oneself
  • Looking out for the patient’s well-being
  • Patients and therapists may have differing views on what is good for the patient

The next principle is beneficence. This stands for the duty to prevent harm to others, remove harm from others, and promote good. Our obligation to this moral duty ends when action can bring harm to oneself. In a health and rehab context, we look at beneficence as looking out for the patient's well-being. However, patients and healthcare providers may have differing views on what is good for the patient. We may think the best thing in the world is for them to get dressed, take a shower, and walk. However, the patient may not want to walk due to a fear of falling or pain. For these reasons, they may not consider it in their own best interest.

Justice

  • Fairly distributing burdens and benefits in society
  • Focus on who should get the resources
  • Justice and fairness in ethics depend on contextual factors that can influence choices and decisions

The next principle is justice. This looks at ways of fairly distributing burdens and benefits in society and giving individuals what we call their fair due. Fairness is the key element here. As more and more people compete for limited healthcare resources, the principle of justice takes a front seat in healthcare decision-making. The principle of justice focuses on who should get the resources. It examines whether some deserve those resources more than others, and more importantly, who gets to make those decisions. Justice and fairness in ethical decision-making depend on contextual factors. These are things like religious beliefs, professional, legal, and institutional factors, and others. These factors can influence clinical decisions and choices.

These are the basic principles of ethics, but some other concepts to review are very closely linked.

Informed Consent and Veracity

  • Present patients with details, benefits, risks, and potential risks of proposed interventions
  • Consent is based on specific information
  • Consent relies on veracity -- obligation to speak and act truthfully

One of these is informed consent, and another is veracity. Informed consent obligates us to present patients with the details, benefits, risks, and potential risks of all the proposed intervention strategies so they can make a willing and informed choice in their care. Since patients base their consent on the specific information about the interventions, we will do, obtaining informed consent relies heavily on another ethical principle: veracity. Veracity is one's obligation to speak and to act truthfully. This affects all communication that we have with our patients.

Confidentiality

  • Obligation to limit access to information gathered in the course of treatment
  • Keep information strictly between the therapist and the patient
  • Certain laws mandate breach of confidentiality to protect citizens

Another closely related concept is confidentiality. This is also found within the roots of the Hippocratic Oath. "Anything I see or hear of the life of men, whether in a professional capacity or otherwise, which should not be passed on to others, I will hold as professional secrets and not divulge them." All healthcare providers have this duty or obligation to limit access to information gathered in the course of treatment. We need to keep the information strictly between the healthcare provider and the patient. Other ethical principles dictate some exceptions to this duty to keep the patient information confidential. For example, based on the principle of justice and beneficence, certain laws mandate confidentiality breaches to protect citizens. Child abuse laws and other types of reporting laws like elder abuse in certain states are designed to protect individuals who may be mortally threatened.

Fidelity

  • Moral duty to keep promises and commitments
  • Patients expect therapists to keep explicit and implicit promises

Fidelity is closely related to confidentiality. And again, this is the moral duty to keep your promises and commitments. I think this is so important. If we promise something to a patient, we need to deliver that. We should not promise that to which we cannot deliver. Patients expect us to keep our explicit and implicit promises, including keeping shared information confidential and providing services that the physician orders. Occupational therapy services are ordered to be delivered.

Duty

  • Obligations to others in society
  • Duties exist because of the nature of the relationship between the parties

Duty is our next one. This refers to the obligations to others in society. Sometimes these duties exist because of the nature of the relationship between the parties. For example, when we start a patient/therapist relationship in the therapy arena, we owe certain duties to the patient. This includes a duty to provide a certain quality and level of care, confidentiality, and a few other things.

Rights

  • Ability to take advantage of moral entitlement to do something or not to do something
  • Patient’s Bill of Rights
  • Federal statutes (e.g., HIPAA)
  • Facility-specific bill of rights

We will be talking about rights in a little bit on some other slides, but this refers to the ability to take advantage of moral entitlement to do something or not do something. I have been in practice for almost 30 years. Things are very different from when I first started practicing. Healthcare reform has ushered in a lot of different rights. This includes the Patient's Bill of Rights, federal statutes like HIPAA, and facility-specific bills of rights as well. One example is the right to health insurance without regard to preexisting conditions. States can have particular statutes as well.

Paternalism

  • Failure to respect autonomy; acting with disregard to individual rights
  • Substituting one’s beliefs, opinions, judgments for the patient’s 
  • Attempt to justify by claiming they acted in the person’s best interests

Paternalism is not necessarily an ethical principle per se, but this can occur when we fail to respect autonomy. This is when we act with disregard to an individual's rights or in a paternalistic manner. We substitute our own beliefs, opinions, and judgments. We may act without informed consent. We may act against the patient's wishes under the guise of a desire to benefit the patient. People will justify this by saying, "I acted in the person's best interest. I was only doing what I felt was best for them." 

Code of Ethics

Let's now take a deep dive into the OT code of ethics.

Professional Ethics

  • Incorporates values, principles, and morals into professional decision making
  • Professions try to instill their own values to avoid and prevent unwanted professional behaviors
  • Utilize training and professional obligations as a source of ethical values
  • Professional codes of ethics used to guide behavior

Professional ethics incorporates the values, principles, and morals into professional decision-making. When we do not have guidance, values, or morals, we fall into traps that cause trouble for ourselves, others, and society in general. People who know me know that I often say, "All you have is your ethics and integrity. Make it count." I think that is so critically important. We have to have those values and principles guiding us, definitely in professional settings, and I would also say outside of the profession.

Often, we see professionals splashed across the front page of the newspaper or on social networks. Depending on your state licensure board, they may send notices about who is on probation and who has lost their license. You just cringe when you see that. In the hope of avoiding these types of ethical and legal problems, all professions try to instill their own values to prevent these unwanted professional behaviors. Professionals dedicated to a common purpose with common training, like OTs, draw from this their professional obligations as another source of ethical values. These codes of ethics have been developed to guide us in our behavior in very specific circumscribed, professional situations.

Codes of Ethics

  • Incorporate sets of rules or principles intended to express the particular values of the profession as a whole
  • Licensing boards/credentialing agencies incorporate professional codes of ethics into licensure regulations or credentialing rules

Again, professional codes of ethics incorporate these sets of rules or principles intended to express the values of the profession as a whole. I think that is important to the profession as a whole. Your membership in the professional association extends an obligation, a responsibility, and a commitment to the profession to abide by the associations' code of ethics. That may mean, for example, using evidence-based practice and quality measures, depending on the code of ethics. However, you do not have to be a member of AOTA to be held to the code of ethics. The code is for the profession as a whole. Oftentimes, you will see this with licensing as well. We will touch on this more a little later. It is so critically important that you know your licensure law inside and out and any other credentialing agencies. They may also have codes of ethics and regulations in their credentialing rules. And again, those credentialing bodies could promulgate their own codes of ethics that they would want to enforce. We want to be aware of all of these different rules.

  • Promote basic tenets of a profession
  • Codify fundamental beliefs of the professions and the common moral values the profession chooses to protect patients and clients from harm
  • Meaning to the uniqueness of what therapists do
  • Create a bond between professionals 
  • Provides the basis for the meaning of what it means to be a member of a particular profession
  • Values to incorporate into a moral and behavioral repertoire

Again, the code of ethics promotes the basic tenant of a profession. They codify the profession's fundamental beliefs or the common moral values that the profession chooses to use to protect patients. It gives meaning to the uniqueness of what we as occupational therapists do. It creates this bond between all of us as professionals to practice according to a common standard. It is the basis for the meaning of what it means to be an occupational therapist or an occupational therapy assistant. It is a moral behavioral repertoire, like other social, cultural, and religious values. As a complete aside, in my full-time work, I oftentimes am asked to provide education or do something for this very reason. Perhaps someone has violated the code of ethics in some way.

  • A measure of proper professional behavior
  • Standard of care to be rendered
  • Rarely does a code of ethics provide an absolute guide to behavior/decision making
  • Code is a starting place or point of reference

The reality is that courts often use the code of ethics to measure proper professional behavior and as an element of the standard of care that we are supposed to render. Under these circumstances, the code of ethics guides everybody in the profession, even those who are not a member of AOTA. Rarely does a code of ethics provide an absolute guide or an absolute decision-making process for every circumstance, but rather it is a starting place. It is a point of reference or an aspiration to guide professional practice and decisions. There are the code of ethics and a couple of other AOTA related documents that are open to the general public in your handouts.

Unethical Practice

  • Practice that does not comport to established professional standards
  • Practice that ranges from unreasonable, unjustified, and ineffective to immoral, questionable, and knowingly harmful or wrong
  • Unethical practice affects the patient, the therapist, the facility/company, insurance providers (e.g., Medicare), society, etc.

We can talk about ethical practice and also unethical practice. When we talk about unethical practice, it is a practice that does not comport to the established professional standards. It also includes practice that is unreasonable, unjustified, ineffective, immoral, questionable, knowingly harmful, or wrong. I am sure that we can all identify practices that we ourselves consider unethical. However, since we arrive at our ethical analysis from different views and social, religious, and cultural perspectives, not everyone will agree with your specific analysis. Unethical practice again, as we know, affects the patient and health and rehab professionals. It also affects the organization that you work for, insurance providers, society, and more. Unethical practices can cause serious consequences. It can have potentially far-reaching social ramifications all the way up to and including policies that come from our government. 

AOTA 2020 Occupational Therapy Code of Ethics

 

Let's go through now the AOTA 2020 Occupational Therapy Code of Ethics. These are designed to reflect the nature of the occupational therapy profession, the evolving healthcare environment, emerging technologies that we may see, and different things in our practice that can present potential ethical concerns, whether in our practice, research, education, lawmaking, or policy.

Purpose of the AOTA Code of Ethics

  • Tailored to address the most prevalent ethical concerns of the profession
  • Serves two purposes
    • Provides aspirational Core Values that guide occupational therapy personnel toward ethical courses of action in professional and volunteer roles
    • Delineates ethical Principles and enforceable Standards of Conduct that apply to AOTA members​​

The code is an official document. It is tailored to address the most prevalent ethical concerns in OT, but not every ethical concern, obviously. It has the core values that we are going to be talking about. It also outlines standards of conduct that the public or patients can expect from us in the profession. As I have said, it applies to all OT personnel in all areas of occupational therapy. This is not just home care, pediatrics, or long-term care. It is everywhere.

This code serves two general purposes. It provides core values that guide OT personnel toward ethical courses of action in professional and volunteer roles. It also delineates ethical principles and enforceable standards of conduct that apply to all AOTA members. Whereas the code helps guide and define decision-making parameters, ethical action goes beyond compliance with the principles and as a manifestation of moral character and mindful reflection. Adherence to that code is a commitment to benefit everyone, a virtuous practice of artistry and science, good behaviors that benefit our patients, and noble acts. Let's be very honest--what we do is a noble calling in healthcare. We help people. As we start going through some case examples, recognizing and resolving ethical issues is a systematic process that analyzes all of the components of the situation and comes to a decision.

Core Values

  • Core Values and Attitudes of Occupational Therapy Practice
    • Altruism
    • Equality
    • Freedom
    • Justice
    • Dignity
    • Truth
    • Prudence 

With that in mind, these are our core values. We have already talked a little bit about some of them. There are seven longstanding core values, altruism, equality, freedom, justice, dignity, truth, and prudence. These provide a foundation to guide us in our actions. We would want to consider these when determining the most ethical course of action in any ethical situation.

Altruism indicates a demonstration of unselfish concern for the welfare of others. We reflect this concept in actions, attitudes, commitment, caring, dedication, responsiveness, understanding, and all of those things that OTs bring to the table.

Equality indicates that all persons have fundamental human rights and the same opportunities. We demonstrate this value by maintaining an attitude of fairness and impartiality. We treat everyone without bias. We also recognize our own biases. We respect that people have different values, beliefs, lifestyles, and backgrounds from our own, and this does not impact the treatment that we deliver. Equality also applies as well to the recipients of our OT services. We would treat them with equality as well.

Freedom values each person's right to exercise autonomy. This is similar to the ethical principles of initiative, independence, and self-direction. A person's occupations play a major role in their development of self-direction, initiation, ability to adapt, and ability to relate to the world. We, as OT professionals, recognize that and affirm the autonomy of each individual to pursue goals that have personal meaning. We value our service recipient and their right and desire to guide the interventions. We let them guide the intervention process, and we are a part of that.

Justice is providing services for all persons in need of those services. We maintain a goal-directed and objective relationship with the recipient. This places a value on upholding moral and legal principles and having knowledge of and respect for the recipients' legal rights. We need to understand and abide by local, state, federal laws governing our professional practice. Justice is the pursuit of a state in which diverse communities are inclusive, organized, and structured so that everyone can function, flourish, and live a satisfactory life. Everyone can flourish regardless of age, gender identity, sexual orientation, race, religion, origin, socioeconomic status, degree of ability, or any other status or attribute that that person may have. Under the specific nature of OT practice, occupational therapy personnel has a vested interest in social justice. This is addressing those unjust inequities that limit opportunities for participation. We also have attitudes and actions consistent with occupational justice for full inclusion in everyday, meaningful occupations for persons, groups, and populations. If you look back at historic OT documents, you will note that that language is on the newer side and looks at social and occupational justice because those are very critical topics to our profession.

Dignity is the importance of valuing, promoting, and preserving the inherent worth and uniqueness of every person. It includes respecting the person's social, cultural heritage, and life experiences. This exhibits attitudes and actions of dignity and requires that we act in consistent ways with cultural sensitivity, humility, and agility.

Truth is that we are faithful to facts and reality. Veracity is demonstrated in our industry by being accountable, honest, forthright, accurate, authentic. We have an obligation to be truthful with ourselves and our recipients of service, our colleagues, and society as a whole. This is professional competence, and it is also being truthful in oral, written, and electronic communications. Many of the ethical issues that come across my desk relate back to documentation. What did somebody text? What did somebody email? Veracity or truth is critically important.

Finally, prudence is the ability to govern and discipline through the use of reason. This is valuing judiciousness, discretion, vigilance, moderation, care, and circumspection to manage our own affairs and temper extremes. It is not to make judgments and respond based on intelligent reflection rational thought.

Principles

Then, we have our principles. You are going to see that these are very similar to what we have already talked about. The principles guide our ethical decision-making and inspire us to act by our highest ideals. These are not hierarchically organized. At times, conflicts between competing principles need to be considered. When there are two things at odds, we have to figure out the best course of action.

1: Beneficence. Occupational therapy personnel shall demonstrate a concern for the well-being and safety of the recipients of their services

We have already talked about the definition of beneficence, and this is a concern for wellbeing. This includes all forms of action intended to benefit another person. This is historically indicated as acts of mercy, kindness, and charity. It requires us to take action to benefit others. In other words, we are promoting good to prevent or remove harm. This might mean protecting and defending the rights of somebody else to prevent harm or removing conditions that may cause harm. This may offer services that would benefit a person with disabilities or protect and remove somebody potentially from a dangerous situation. All of those are examples of beneficence.

2: Nonmaleficence. Occupational therapy personnel shall intentionally refrain from actions that cause harm

I already talked about nonmaleficence again. This is refraining from anything that would cause harm, injury, or wrongdoing to recipients of service. While beneficence requires taking actions to incur benefit, nonmaleficence requires avoiding actions that cause harm. This also includes an obligation not to impose risks of harm even if the potential risk is without malice or any sort of harmful intent. This principle often is examined in the context of due care, which requires that the benefits of care outweigh and justify the risks that might be taken related to the goals of care. For example, an OT intervention might require the service recipient to invest a lot of time and perhaps even discomfort. However, the time and discomfort are justified by potential long-term evidence-based benefits of the treatment. That would be a good example of nonmaleficence in action.

3: Autonomy. Occupational therapy personnel shall respect the right of the person to self-determination, privacy, confidentiality, and consent

Autonomy is the duty to treat the client or the service recipient according to their desires within the bounds of accepted standards of care, protecting their confidential information. Respect for autonomy is referred to as the self-determination principle. This respects our service recipients' autonomy, acknowledging their agency and their right to their own views, opinions, choices in their care based on their own values and beliefs. For example, someone has the right to decide regarding care decision that affects their life. If they do not have that decision-making capacity, their autonomy would be respected through the involvement of an authorized agent or a surrogate decision-maker. 

4: Justice. Occupational therapy personnel shall promote equity, inclusion, and objectivity in the provision of occupational therapy services

Justice is the fair, equitable, and appropriate treatment of persons. We demonstrate this with respect, inclusion, and impartiality toward anybody, person, group, population with whom we interact regardless of age, gender identity, sexual orientation, race, religion, origin, degree of ability, et cetera. We also respect the applicable laws and standards related to practice. We work to create and uphold a society where everyone has an equitable opportunity for full inclusion in meaningful occupational engagement. That is the principle of justice in action. Isn't this what we do as OTs?

5: Veracity. Occupational therapy personnel shall provide comprehensive, accurate, and objective information when representing the profession

We already talked a little bit about veracity. This is comprehensive, accurate, and objective transmission of information, including fostering understanding of that information. Veracity is based on the virtues of truthfulness, candor, honesty, and respect. We implicitly promise in all of our interactions to be truthful and not deceptive. If you are in a doctoral program and research, the research participant has a right to accurate information as an example. We would give that information, not withhold it. Besides, we have to make sure that the person can understand the information provided. This gets into the topics of health literacy and cultural competency.

6: Fidelity. Occupational therapy personnel shall treat clients (persons, groups, or populations), colleagues, and other professionals with respect, fairness, discretion, and integrity

We treat everybody (clients, colleagues, et cetera) with fairness, discretion, and integrity. Again, this refers to the duty that we have to keep a commitment once we make it. This involves promises made between a provider and a client and the maintenance of respectful relationships within an organization and with our colleagues. Professional relationships are greatly influenced by the complexity of the environment. We always want to balance our duties to our patients, to our students, to whomever, as well as to the organization that may influence decision-making and professional practice.

Those are our principles, and we also have standards of conduct. The AOTA and the ethics commission enforce these as well.

Standards of Conduct

  1. Professional Integrity, Responsibility, and Accountability
  2. Therapeutic Relationships
  3. Documentation, Reimbursement, and Financial Matters
  4. Service Delivery
  5. Professional Competence, Education, Supervision, and Training
  6. Communication
  7. Professional Civility

The seven standards of conduct are part of the AOTA code of ethics. There is a lot more than just this overview. I strongly urge you to review these standards of conduct because there is a lot of information. The first one is professional integrity, responsibility, and accountability. Again, we maintain awareness and comply with policies, official documents, current laws, regulations, and anything applicable to the OT profession. The next is therapeutic relationships. Again, we develop these relationships to promote well-being in persons, groups, organizations, and society. This is regardless of any other factors, status, or attributes. For documentation, reimbursement, and all financial matters, we need to maintain complete, accurate, and timely records of all client encounters. If you look at your licensure laws, many speak to the same thing. Service delivery is the next one. We strive to deliver quality services that are occupation-based, client-centered, safe, interactive, culturally sensitive, and evidence-based. They need to be consistent with our values and our philosophies as a profession. Professional competence, education, supervision, and training are essential. We maintain our credentials, degrees, license, and certifications to demonstrate a commitment to maintaining continued competence to evidence-based practice. It is not just checking the box to say you got credits to renew your license. It is about having professional and continued clinical competence. Next is communication. Whether this is written, verbal, electronic, or virtual, we need to uphold the highest standards of confidentiality, informed consent, autonomy, accuracy, timeliness, and record management. Finally, there is professional civility. We need to conduct ourselves civilly during all discourse, which entails honoring one's personal values while simultaneously listening to other points of view. These values include cultural sensitivity and humility. I think it is always important to be civil to see the other side in our current environment.

Licensure

Let's switch gears a little bit and talk about licensure in general; we will not go into specific state licensure laws. Licensure laws are also standards of conduct. Many follow AOTA guidelines and documents, but there may also be certain criteria for certifications. For example, I have a specific dementia certification, and there are certain things I must follow. 

Licensure Guidelines

  • Standard of conduct for therapists
  • States control licensure through laws and regulations
  • Requirements vary from state to state
  • Licensure laws prescribe the type of behavior therapists must follow
  • Minimum standards for licensure and requirements to ensure competent practice 

You have to know what those guidelines are. The states control the licensure and mandate certain rules and regulations, and those are going to vary from state to state. I think you will find some commonalities, but they vary for sure. We have to understand these so that we can practice within legal and ethical parameters. The licensure laws are out there to protect the public and also us. They prescribe the type of behavior that we need to follow within the state. Oftentimes, it incorporates a code of ethics, whether they are state-specific or from a professional association. It is the minimum standard for licensure and re-licensure to ensure that we are practicing competently.

  • Penalties for those who participate in the behaviors they prohibit
  • Disciplinary actions refer to the process of assigning penalties for unacceptable behaviors
  • Penalties range from fines to suspension or revocation of a license
  • Every practitioner should read their licensure law

Licensure also enumerates the penalties for those who participate in the behaviors that they prohibit. There are disciplinary actions that they assign for unacceptable behaviors. Violating the state licensure law subjects you to a disciplinary process. I am licensed in several states, and often I see reports about people who have violated a rule. Penalties could be just a simple disciplinary action like a fine, a suspension, or a revocation with a license being taken away. Sometimes, you cannot practice in other states due to reciprocity with them. 

Behaviors Subject to Disciplinary Action

Although the specific enumerated and prohibited behaviors vary from state to state, some can subject licensed practitioners to disciplinary action. These are things like engaging in a sexual relationship with a patient, accepting a kickback, or failing to report a change of address. Believe it or not, if you have moved and you have not given your updated address, this is a violation. Unlicensed people take advantage of our patients. And again, we will talk more about that in a second.

You need to read your licensure law, known as your practice act, to determine what you should or should not do and the continuing education, documentation, and supervision requirements. All of these are outlined within the practice act and can keep you out of trouble. 

Below are listed some behaviors that may subject licensees to disciplinary action. Keep in mind that this list is not all-inclusive, and it is going to vary from state to state. Again, you need to read your licensure law to make sure you understand it. I get questions every day about certain things. I always say, "What does your state practice act say?" Often, they will say, "I'm not sure." This always amazes me. How can you practice in the state and not know your practice act? I think some behaviors are universal, like these listed below.

  • Abuse of drugs or alcohol
  • Conviction of a felony
  • Conviction of a crime of moral turpitude 
  • Conviction of a crime related to therapy practice
  • Practicing without a prescription or referral
  • Practicing outside the scope of one’s practice or using interventions for which one is not certified or trained
  • Obtaining a license using fraud or deception

The list includes abuse of drugs or alcohol, a conviction of a felony, and conviction of a crime of moral turpitude. A crime of moral turpitude may include a sex offense, extortion, or embezzlement. There could be a conviction of a crime related to the profession's practice for which you hold a license. This might be practicing without a prescription or a referral if required in your state practice act or by a payer. It could also be practicing outside of the scope of your practice or using interventions for which one is not certified or trained. For example, in some state practice acts, you have to have specialty certification and training to use physical agent modalities, and if you have not done that, you could be held liable for that. Another is obtaining a license using fraud or deception. This could also be purposely giving an incorrect address on your application.

  • Gross negligence in practicing therapy 
  • Breaching patient confidentiality
  • Failing to report a known violation of the licensure law by another licensee
  • Making or filing false claims or reports
  • Accepting kickbacks
  • Exercising undue influence over patients
  • Failing to maintain adequate records

Gross negligence in practicing your profession or breaching confidentiality are others. We have talked about that. Failing to report a known violation of the licensure law by another licensee. This is called mandatory reporting, and we will discuss this in a few minutes. Making or filing false claims or reports, accepting kickbacks, exercising undue influence over our patients, and failing to maintain adequate records are other violations.

  • Failing to provide adequate supervision
  • Providing unnecessary services
  • False, deceptive, misleading advertising
  • Practicing under another name
  • Failure to perform a legal obligation
  • Practicing medicine when you are not a physician

We need to provide adequate supervision for OTAs, students, and techs/aides. Providing unnecessary services, false, deceptive, or misleading advertising, and practicing using another name other than your own name are unacceptable behaviors. Failure to perform some legal obligation that is required in your state is another. Practicing medicine when you are not a physician might be diagnosing and prescribing. Believe it or not, those things actually happen.

  • Performing services not authorized
  • Performing experimental services without informed consent
  • Practicing beyond the scope permitted
  • Failure to comply with CE requirements 
  • Failure to notify the licensing board of an address change
  • Inability to practice competently

Performing services that were not authorized might be doing experimental services or research without giving all the information to your patient. Another infraction might be practicing beyond your scope of practice and failing to comply with continuing education requirements if your state mandates those. Again, not every state has CE requirements. You need to know the rules as it relates to your state. For instance, does it have to be live? Can it be online? Does it have to be face-to-face? Every state is very different. Failure to notify the licensing board of an address change failing to renew and practice competently is another. This is just a general list. Your practice act may differ significantly, but this is why you have to know what is in it.

Fraud and Abuse

We will now switch gears again and talk about various topics as they relate to clinical practice.

Abuse

  • Other laws impose legal duties and obligations upon health care professionals
    • For example, reporting suspected abuse.  
  • The legal requirement to report abuse is an exception to a confidentiality requirement

When we talk about abuse, this could be child, spouse, or elder abuse. In addition to licensure, other laws impose legal duties and obligations upon us. To protect citizens, states go beyond just prohibiting abuse and require certain professionals to report suspected abuse. Some states have gone so far as to require particular abuse training every time you renew your license. Some states only require that physician's report, while others extend it to all healthcare professionals, teachers, and daycare workers. Again, the state's legal requirement to report abuse serves as an exception to any confidentiality agreement. We hold everything confidential unless we are mandatory reporters as it relates to one of these situations. 

Fraud

  • Often occurs in the context of billing/documentation
    • Billing for services never provided
    • Billing for more services than were provided
    • Billing for non-covered services
    • Backdating
    • Fabricating notes for visits never made

Sadly, fraud occurs. It can happen when an individual makes some misrepresentation or lies to induce an entity or individual to do something or refrain from doing something. In a therapy context, fraud often occurs in the context of billing or documentation, where we misrepresent something. An example might be billing for services that were never provided or bill for more services than were actually provided or covered. We might bill for a more expensive service when actually something less expensive was delivered.

It could also be related to documentation. An example is backdating documentation or fabricating notes for visits that were never made. We see this sometimes when people do their documentation first thing in the morning, assuming that they will see that patient, but then they do not. I have also seen documentation on a patient while they were at the hospital or did not attend. We see this a lot in the Medicare population.

Medicare Fraud and Abuse

  • Fraud: Provider of therapy services knowingly or willingly lies in order to get paid
  • Abuse: Medicare pays for an item or service it should not or any time a provider bills Medicare for services not medically necessary
  • Office of Inspector General (OIG) fights Medicare fraud and abuse through task forces and audits
  • Failure to report illegal activity may result in federal criminal charges of conspiracy

Medicare fraud occurs when a provider of therapy services knowingly or willingly lies in order to get paid. An abuse occurs whenever Medicare, or we could extrapolate that to any payer for that matter, pays for an item or a service that they should not or we bill for something that was not medically necessary. With the passage of the Patient Protection and Affordable Care Act, the Office of Inspector General, the OIG of the United States Department of Health and Human Services, or HHS, has new tools at its disposal to fight fraud and abuse. They have set up fraud task forces in cities with a lot of success, and they are also doing a lot of auditing. If any of you work in that sector, you know the audits are quite significant. They were on hiatus for a little bit concerning COVID, but they are now returning for sure.

Again, many practice acts and codes of ethics require that we report illegal activities such as these. And if we fail to report, in addition to violating our professional code of ethics and practice act, there is a possibility too that you could face federal criminal charges of conspiracy to cover up the fraud. So, if you see something, say something. You have to make sure that you speak up.

Acts Prohibited by Medicare

Now on this slide and the next, I will review some specific acts that Medicare and Medicaid prohibit. And again, this is oftentimes extrapolated to other payers like commercial insurances. They will often follow these similar guidelines.

  • Making false claims for payment
  • Making false statements for payment
  • Billing for visits never made
  • Billing for non-face-to-face therapy services
  • Billing for a one-to-one visit when a group/concurrent therapy services were provided
  • Billing for therapy services not provided by a licensed provider
  • Billing for therapy codes that reimburse at a higher rate than the code provided
  • Paying or receiving kickbacks for goods and services
  • Soliciting for or paying/receiving payment for referrals​

These acts would be billing for visits never made, billing for one-on-one when provided via a group, making false statements, and something that a licensed provider did not provide. Perhaps, you had a tech run the session, and then you billed it as if you delivered that session. Or, you billed for a code that reimburses at a higher rate than what you actually provided. That is called upcoding. Paying or receiving kickbacks for goods or services is another. "Hey, refer your patients to my outpatient clinic, and I will do X, Y, and Z." Obviously, that is not good. 

HIPAA

We have talked a little bit about confidentiality. Confidentiality and HIPAA are very closely related. We are going to do a deep dive into HIPAA.

What is HIPAA?

  • The Health Insurance Portability and Accountability Act (HIPAA) is a federal law that:
    • Protects the privacy of patient health information
    • Provides for the electronic and physical security of patient health information
    • Prevents healthcare fraud and abuse
    • Simplifies billing and other transactions, reducing health care administrative costs
    • Gives patients rights over use and disclosure of their health information
  • HIPAA Privacy Rule:
    • Sets standards on maintaining the privacy of Protected Health Information, or PHI
  • HIPAA Security Rule:
    • Requires the security of electronic forms of PHI, or e-PHI
    • Defines the standards to implement safeguards to protect e-PHI

HIPAA is the Health Insurance Portability and Accountability Act that has been around for quite some time. It is a federal law that protects the privacy of patient health information both electronically and physically. It prevents healthcare fraud and abuse. It simplifies billing and other transactions as well as reduces healthcare administrative costs. The HIPAA privacy rule sets forth standards on maintaining the privacy of protected health information, PHI. The HIPAA security rule requires the security of electronic forms of PHI, also known as e-PHI, and it defines the standards to implement safeguards to protect that e-PHI.

Does HIPAA Apply to Me?

  • HIPAA requires that providers train all workforce members about our HIPAA policies and procedures that may affect your work. These rules apply to you when you look at, use, or share Protected Health Information (PHI). 
  • The HIPAA law applies to “Covered Entities”
    • Healthcare Providers
    • Health Plans: Medicare, Medicaid, Insurance plans
    • Clearinghouses for electronic billing
  • HIPAA also applies to Business Associates -  the organizations that use and disclose health information  to provide services to Covered Entities

Does it apply to you? Of course, HIPAA applies to you. HIPAA requires that all workforce members are trained about HIPAA policies and procedures. I am sure that every one of you in this session has had some sort of HIPAA training in your workplace setting. Additionally, every time you go to the doctor, hospital, dentist, or whatever, you sign something related to HIPAA. I think they update those every year. The rules apply to you when you share protected health information.

It also applies to what we call covered entities. These are the healthcare providers and plans like Medicare, Medicaid, insurance plans, or whoever is paying for that service. This also includes the clearinghouses that help with electronic billing for other entities. It also applies to business associates. These are the organizations that use and disclose health information to provide services to covered entities. For example, if you work for a contracted service like a school system or an outpatient clinic, the rules would apply there as well.

What Information Must Be Protected?

  • Protected Health Information (PHI) is information related to a patient’s past, present or future physical and/or mental health or condition
  • PHI can be in any form: written (soft charts), spoken (hallway discussion), or electronic (email, Casamba, Optima Health records) 
  • PHI is any health information with identifiers. PHI must include at least one of the 18 personal identifiers in association with health information. Examples of identifiers:
    • Name, Postal Address, Social Security Number
    • Medical Record Number, Health Plan Beneficiary Number 
    • Full face photographic images/ any comparable images
    • All elements of dates except year (birth date, discharge date)

What information has to be protected? Any information related to the patient's past, present, or future physical and mental health conditions needs to be protected. This could be written, maybe soft charts or other note that you are required to keep. This also relates to the spoken word. It could be a discussion in the hallway or the elevator. Or, it can be electronic, like an electronic medical record or an email. PHI is any health information that has a personal identifier. There are 18 different identifiers. Some examples are social security number, name, address, medical record number, health plan beneficiary number or an insurance number, full-face photographic images, elements of dates except the year, discharge date, birth date, et cetera. There are also some age restrictions in there as well. 

Patient Rights Under HIPAA

  • Right to access their own medical records
  • Right to request to amend or correct their records
  • Right to an accounting of PHI disclosures
  • Right to request a restriction limiting  access by others to their records
  • Right to request confidential communications of their health information
  • Right to file a complaint if they believe their privacy rights have been violated

The client also has rights under HIPAA. They have the right to access their medical records and to amend or correct those records. They have a right to an accounting of disclosures. Who did you send my information to, and for what purpose? They have the right to request a restriction limiting access. They may want you to send their information to one physician and not another as an example. They have a right to request confidential communication of your health information. They have a right to file a complaint if they believe that their privacy rights have been violated. Obviously, the people who obtain our occupational therapy services have those same rights.

How Can We Use and Share Patient Information?

  • Treatment (T): Physicians, nurses, therapists, and other providers may access a patient’s record for treatment.  Health information  may also be shared with other health care providers outside of the facility  to decide on the best treatment or to coordinate care  
  • Payment (P): Health information is shared with Medicare, Medicaid, insurance plans, and other payers  for claims payment and benefits determination
  • Operations (O): Health information is used for quality assurance, training, and audit purposes
  • For Purposes Other Than TPO: Unless required or permitted by law, must obtain written authorization from the patient to use, disclose, or access patient information

How can we use the information for treatment, payment, and operations (TPO)? Treatment applies to anybody like physicians, nurses, or therapists accessing that record to treat the patient. We can share that information with other healthcare providers inside or outside the place where we are working to decide on the best treatment or coordinate care. For payment, we share information with the payers like Medicare, Medicaid, and insurance plans to determine whether or not benefits are applicable. Finally, we can certainly use it for quality assurance, performance improvement, training, auditing, et cetera. If the information does not fall under those three areas, we need a written authorization from the individual.

Except for Treatment, The Minimum Necessary Standard Applies

  • For patient care and treatment, HIPAA does not impose restrictions on the use and disclosure of PHI by health care providers. Exceptions: psychotherapy information, HIV test results, and substance abuse information
  • For anything else, HIPAA requires users to access the “minimum necessary” amount of information necessary to perform their duties and only disclose to those that need to know

There is also a minimum necessary standard for patient care. They do not restrict us from using that if we are healthcare providers. For anything else, it is the minimum necessary amount of information or a need-to-know basis. If you do not really need to know that information, you should not know that. You only get what you need to perform your duties. There are no restrictions per se, except for psychotherapy information, HIV test results, and substance abuse information. There might be some other state-specific things, but in general, that would be the requirement.

HIPAA Security Rule Safeguards

  • The HIPAA Security Rule requires Administrative, Physical, and Technical safeguards be established 
    • Administrative: Appoint Security Officer, provide security training, develop policies/procedures
    • Physical: Protect the physical system and equipment (data backup, proper storage, and disposal)
    • Technical: Ensure protection of health information  and its transmittal (unique user ID, a strong password,  automatic log-off from the system)

I already mentioned the HIPAA security rule safeguards. Again, this is an electronic form. They require that there are administrative, physical, and technical safeguards in place. Administrative safeguards might include appointing a security officer, providing training to individuals or employees of that organization, or developing policies and procedures that protect electronic PHI. Physical safeguards might include measures to protect the physical system and the equipment. These are things like backing up data, proper storage, electronic media disposal, and not putting that information on a thumb drive or taking it home with you. There can also be technical safeguards like a unique user ID, a strong password, or maybe your organization requires you to change your password every 90 days. They can also arrange for an automatic log-off from the system if you walk away. I see this where I work as the computers are in the hallways.

Fines and Penalties

  • HIPAA Criminal Penalties: 
    • $50,000 - $1,500,000 fines
    • Imprisonment up to 10 years
  • HIPAA Civil Penalties: $100 - $25,000 / year fines
  • More fines if multiple-year violations
  • State Laws: Many states have also enacted medical information privacy laws! For violations, fines and penalties may apply to individuals as well as healthcare providers. Imprisonment and action against your professional license may also apply.
  • Corrective and disciplinary actions, up to  termination of employment

Fines can be pretty significant. There are substantial penalties for HIPAA violations, and these are Federal penalties, as noted above. States have enacted other privacy laws with substantial penalties as well. Most organizations supporting a commitment to privacy will have some sort of corrective action up to and including termination of employment. And on top of that, you can be barred from providing services to a specific type of payer. For example, you could be prohibited from billing the Medicare or Medicaid programs.

Resident Rights and Elder Abuse

Resident Rights

  • The Right to Be Fully Informed
    • Available services, charges, facility rules, regulations, rights, Ombudsman information, state survey, room changes 
  • Right to Complain
    • Present grievances without fear of reprisal, prompt efforts to resolve
  • Right to Participate in One's Own Care
    • Receive adequate care, informed of medical condition changes, participate in care planning, treatment, discharge

Resident rights came into play in 1987 through the Nursing Home Reform Law. It is unfathomable to think before that our patients did not have rights, especially since we see so many ethical issues coming from that area of practice. Nursing homes are required to provide services and activities to attain and maintain the highest practicable physical, mental, and psychosocial well-being for every person under their care. They develop a care plan much as we do for the people that we serve. This means that a person will not decline unless it is unavoidable decline due to their diagnosis or condition, not because we treated them poorly.

There are some very specific rights. The first is the right to be fully informed of the available services, charges, facility rules, and regulations. They need to get a copy of their rights and a number for who they can call to complain (ombudsman). I think every venue has some sort of complaint process or a way to advocate for their treatment. Examples could be if their room will change if assistance is available if they have a sensory impairment, information in a language that they understand, et cetera. 

The next right is the right to complain. They need to be able to present their grievances without any sort of fear of reprisal. This could be with a state survey agency, a certification agency, a state ombudsman, or somebody within the organization.

The right to participate in one's own care is another. They need to be informed of a change in condition, to participate in their assessment, and to review their medical record, if that is what they want to do. They can also refuse treatment as well. 

  • Right to Privacy and Confidentiality
    • Private communication, privacy during treatment, and care
  • Rights During Transfers/Discharges
    • Receive 30-day notice, which includes the reason, effective date, and location
  • Right to Dignity, Respect, and Freedom
    • To be treated with consideration, respect, dignity and be free from abuse

They have the right to privacy and confidentiality. If you think about it from an OT perspective, they have the right not to be treated out in the open. It may not be very respectful to them. Rights during transfers and discharges are very specific to where they have a bed. They can remain there unless a discharge would be required to meet the resident's welfare. And if they are going to be moved, that they get a 30-day notice of that transfer. They also have a right to dignity, respect, and freedom. These are ethical components such as to be treated with respect, dignity, free from abuse, and have the security of their possessions.

  • Right to Visits (or refuse visits)
    • By a personal MD, state surveyor, relatives, friends, organizations
  • Right to Make Independent Choices
    • Make personal decisions regarding accommodations, MD, community activities, financial affairs

They have a right to have visits by whomever they want; relatives, friends, whomever. They have a right to make independent choices and what activities they want to engage in. They can manage their own finances. These decisions should not be taken away from them unless compromised cognition and someone is acting as a surrogate.

Elder Abuse

  • Growing geriatric concern
  • Health and social system breakdown
  • Look beyond protective services records and examine financial, medical, social, and long-term care areas for possible difficulties and solutions

Elder abuse is a growing geriatric concern. There is clear evidence of it, but the prevalence and scope, unfortunately, are not available. An informed and enlightened social policy requires that we be aware of it. We have to look beyond Adult Protective Services and look at other areas. Abuse is physical harm, but it can occur in financial, medical, and social situations. Unfortunately, elder abuse does represent health and social system breakdown. With the demographic changes in society, the issue is becoming more compelling. It is likely to expand in volume and complexity as we see the elderly population grow in our country.

Elder Abuse and Prevention

  • Acts of omission or commission by a person who st

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kathleen weissberg

Kathleen Weissberg, OTD, OTR/L

Dr. Kathleen Weissberg, (MS in OT, 1993; Doctoral 2014) in her 25+ years of practice, has worked in rehabilitation and long-term care as an executive, researcher and educator.  She has established numerous programs in nursing facilities; authored peer-reviewed publications on topics such as low vision, dementia quality care, and wellness; has spoken at numerous conferences both nationally and internationally, for 20+ State Health Care Associations, and for 25+ state LeadingAge affiliates.  She provides continuing education support to over 17,000 therapists, nurses, and administrators nationwide as National Director of Education for Select Rehabilitation. She is a Certified Dementia Care Practitioner and a Certified Montessori Dementia Care Practitioner.  She serves as the Region 1 Director for the American Occupational Therapy Association Political Affairs Affiliates and is an adjunct professor at both Chatham University in Pittsburgh, PA and Gannon University in Erie, PA. 



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