Mary Alice Fisher, Ph.D.
The Center for Ethical Practice http://www.CenterForEthicalPractice.org
Fisher, M.A. (2009). Professional Psychology: Research and Practice, Vol. 40, No. 5, 459–466
© 2009, American Psychological Association
Under the Ethics Code of the American Psychological Association (APA, 2002), psychologists are responsible for ensuring that delegated tasks are performed competently. For staff members who interact with clients, or who have access to confidential client information, technical competence may not suffice. Psychologists who wish to provide the best protection for clients can offer staff training that fosters “ethical competence” as well. Setting-specific ethics training can be important even for personnel who have previously worked in other mental health sites, because it demonstrates how the profession’s ethical standards will be upheld through specific policies in the current setting. From an ethical perspective, staff training is not an end in itself, nor a risk-management strategy for protecting psychologists, but a means of protecting clients and their rights. The goal is to create a culture of safety (Knapp & VandeCreek, 2006) in which upholding ethical standards becomes everyone’s shared responsibility. The ethics-based training outlined here would be appropriate not only for non-clinical staff, but also for clinical staff, supervisees, and students. It can be adapted to outpatient, inpatient, research, or academic clinic settings.
KEYWORDS: Ethics; Staff; Non-clinical staff; Staff Training; HIPAA
Text of Article
“What should I teach my staff?” If psychologists were free to ask this simply as a business question, they could answer it any way they liked. If it were merely a legal question, they could settle for the workforce training required by the HIPAA Privacy and Security Rules (Health Insurance Privacy and Accountability Act, 1996) and by some state laws. But as with all questions that relate to professional conduct, psychologists must also ask this as an ethical question. This article considers staff training from that perspective.
Ethical Responsibilities About Staff Training
The APA Ethics Code (2002) fosters “the welfare and protection of the individuals and groups with whom psychologists work;” and toward that end, psychologists are urged to pursue the aspirational goal of encouraging “ethical behavior by students, supervisees, employees, and colleagues” (Preamble, p. 1062). From this ethical perspective, staff training is not an end in itself, nor simply a risk-management strategy for the protection of the psychologist, but rather a means toward the protection of clients and their rights.
The section of the APA Ethics Code most directly related to staff training is Ethical Standard 2.05, Delegation of Work to Others. This one-sentence Standard applies whenever a psychologist delegates tasks to someone else, whether clinical or non-clinical:
|Psychologists who delegate work to employees, supervisees, or research or teaching assistants, or who use the services of others, such as interpreters, take reasonable steps to (1) avoid delegating such work to persons who have a multiple relationship with those being served that would likely lead to exploitation or loss of objectivity; (2) authorize only those responsibilities that such persons can be expected to perform competently on the basis of their education, training, or experience, either independently or with the level of supervision being provided; and (3) see that such persons perform these services competently. (APA, 2002, p. 1064)|
For staff members who interact with clients, or who have access to client information, technical competence may not be sufficient. For staff to assist psychologists toward the ethical goal of protecting clients and their rights, “ethical competence” also seems necessary. Although ethics training is not explicitly required by this Ethical Standard, it seems the most direct way to meet the expectation that all staff, including non-clinical staff, will demonstrate ethical behavior.
Other Professional Recommendations
Creating an ethical workplace begins with careful hiring. Woody (2002) recommends selecting job applicants based on their integrity, then screening further for maladaptive behaviors before hiring. Koocher and Keith-Spiegel (2008) recommend that psychologists “assess the ability and sensitivity of all potential staff members prior to hiring” (p. 363), including the ability to respect privacy and confidences, and then exercise diligence in “training and monitoring the behavior of employees and supervisees to ensure conformity with ethical practice” (p. 373). This implies a focus not only on technical competence, but also on the “ethical competence” of staff.
The APA Record Keeping Guidelines (2007) emphasize the need to “educate employees about confidentiality requirements” (p. 997); and Knapp (2002) describes the importance of staff training for preventing accidental breaches of confidentiality. The goal is to “ensure a ‘culture of safety’ in which confidentiality is viewed as everyone’s responsibility” (Knapp &VandeCreek, 2006, p. 115), and all staff cooperate in maintaining high ethical standards the workplace.
For the protection of both clients and themselves, psychologists must be free to discharge any staff member who engages in unethical behavior. This should be explained to both clinical and non-clinical staff and can be stipulated in employment contracts. The APA Insurance Trust actually recommends that all personnel in the setting be required to follow the APA Ethics Code, with failure to do so being “grounds for employment termination” (Bennett et al., 2006, p. 182).
From an ethical perspective, the better the staff training and the higher the expectations for staff conduct, the better protected the clients will be. From a risk-management perspective, the better protected the clients, the safer the psychologist will be. However, attention to risk management does not mean inattention to ethics. On the contrary, awareness of professional ethical principles is an essential aspect of risk management (Bennett et al., 2006).
Legal Requirements About Staff Training
State laws and regulations sometimes define the qualifications or training requirements for those who assist psychologists in certain types of tasks. These vary widely from state to state and will not be described here. However, any legally-mandated training that has ethical implications can be incorporated into the ethics-based training described below.
Federal mandates about staff training arise from the HIPAA regulations (1996) :
|(1) The Privacy Rule explicitly requires staff training: “A covered entity must train all members of its workforce on policies and procedures with respect to protected health information . . .” (45CFR 164.530(b) (1)). This workforce t raining must occur within a reasonable time after a person begins work, must apply to their specific job responsibilities, and must be tailored to the confidentiality policies in that particular setting. The provider must document that the training was provided.(2) The Security Rule protects client information stored in computers or retained in data bases. It requires that all staff receive Security Awareness Training, as well as training about contingency plans in disaster situations (45CFR, 164.308). (See APA Practice Organization, 2004; APA Practice Organization, Office of Legal and Regulatory Affairs and Technology Policy and Projects Staffs, 2005).|
Placing Legal Requirements into Ethical Context
Rather than looking only to legal requirements, psychologists should “practice in a way that upholds the ethics and practice guidelines that we ourselves have established for our profession” (Bennett, Bryant, VandenBos, & Greenwood, 1990, p. 7). It is recommended that psychologists organize staff training around their Ethics Code (which applies nationally), then integrate relevant laws (which vary from state to state) into that ethical structure (Fisher, 2008).
The relationship between ethics and laws can be very confusing. It is true that legal requirements sometimes overlap with psychologists’ ethical obligations. For example, some key HIPAA principles are consistent with confidentiality protections in the APA Ethics Code (Koocher & Keith-Spiegel, 2008); and some state licensing laws cite ethical standards, or incorporate specific professional obligations into law. However, there are also laws that can conflict with ethical standards (Donner, 2008; Knapp, Gottlieb, Berman & Handelsman, 2007; Pope & Bajt, 1988). Ethics-based training highlights both the ethical-legal overlaps and the potential ethical-legal conflicts, helps staff understand the similarities and differences between ethical standards and laws, and helps psychologists prepare for the potential conflicts.
One advantage of ethics-based training is that its focus is on protection of the client’s rights as defined by our own profession. Another advantage is that, unlike training focused on laws, an ethical focus shifts the training responsibility away from attorneys and toward psychologists themselves. Because laws can have ethical consequences, it would be inappropriate for psychologists to focus only on the laws themselves, or to abdicate their training responsibilities to attorneys (Fisher, 2008). Attorneys are experts about laws, and their participation may be necessary for presenting material that has prominent legal content (including HIPAA); but psychologists must serve as the experts about their own ethical standards, retaining responsibility for clarifying the ethical implications of state or federal laws.
To illustrate the importance of these distinctions, the following sections use three training topics to contrast law-based HIPAA training with ethics-based confidentiality training :
Responding Ethically to Legal Demands
How should staff be trained to respond if presented with a legal demand for confidential client information? HIPAA training may teach that a legal mandate is a sufficient basis for disclosing information, even without client consent. Legally speaking, this is sometimes true.
Ethically speaking, however, matters are much more complicated. APA Ethical Standard 1.02 (Conflicts Between Ethics and Law . . . ) gives psychologists specific duties in this situation, the first of which is to determine whether a legal demand conflicts with their ethical duties : “If psychologists’ ethical responsibilities conflict with law . . . psychologists make known their commitment to the Ethics Code and take steps to resolve the conflict” (APA, 2002, p. 1063). APA Record Keeping Guidelines (2007) recommend that psychologists “attempt to resolve conflicts in a way that conforms to both law and to ethical practice” (p. 994).
If a client declines to give consent for the release of legally-demanded information, psychologists can often seek ways to minimize disclosure and can sometimes protect the information completely (APA Committee on Legal Issues, 2006; APA Practice Organization, Legal & Regulatory Affairs Staff, 2008). Even if the information is not legally protectable, non-clinical staff should not be given responsibility for deciding whether to disclose it. Psychologists can use a structured decision-making process for deciding whether to “follow the law despite their ethical concerns” or whether “a conscientious objection is warranted” (Knapp, et al., 2007, p. 54). Ethics-based training can instruct non-clinical staff on such matters as how to behave if a subpoena is delivered, but psychologists themselves must be the ones who weigh the competing values (Behnke, 2001) and make the decision about whether to disclose.
Limiting “Voluntary” Disclosures to the Extent Legally Possible
May employees disclose information without client consent as long as the disclosure is legally allowed? Law-based training may suggest that if a disclosure is allowed by law, then client authorization is not required. This has broad implications : HIPAA allows disclosures for such wide-ranging purposes as “treatment, payment and health care operations activities” (HIPAA, CFR § 164.506); some state laws also allow broad disclosures without client consent.
Ethically speaking, however, disclosing information without client consent in the absence of a legal requirement constitutes a voluntary breach of confidentiality, and this raises ethical issues very different from those raised by legally required disclosures. Whereas a legal requirement can create a true ethical/legal conflict (thereby invoking the ethical duties in Ethical Standard 1.02, described above), a voluntary disclosure involves no ethical/legal conflict at all. There is thus a vital ethical difference between legally mandated disclosures (which can be legally compelled whether or not a client gives consent) and those merely legally allowed (which psychologists remain free not to make, and for which a client remains free not to give consent).
It does complicate matters that APA Ethical Standard 4.05 (Disclosures) allows psychologists to disclose information without client consent not only when “mandated by law,” but also when “permitted by law…” (APA, 2002, p.1066). However, the APA Ethics Office notes that voluntary disclosures without client consent – even if legally allowed – raise issues that require ethical consultation (Behnke & Kinscherff, 2002). Ethics-based training would teach that “legally allowed” may not be synonymous with “ethically appropriate,” and that only the psychologist can decide.
Protecting Clients’ Informed Consent Rights
Should non-clinical staff play a role in the informed consent process? HIPAA trainers may teach that, in the name of efficiency, non-clinical staff can satisfy the legal requirement to inform prospective clients about limits of confidentiality by simply obtaining their signature on the HIPAA “Notice of Privacy Practices.” This practice is not unethical in itself; but it would be unethical to treat it as a substitute for obtaining the client’s truly informed consent to accept the potential risks created by the limits that may be imposed on confidentiality (Fisher, 2008).
Legally speaking, the purpose of signing the HIPAA “Notice of Privacy Practices” is to document that it was received. Ethically speaking, however, obtaining informed consent about the limits of confidentiality involves more than obtaining a signature on a form. Furthermore, a Notice unintelligible to an average client does not meet the ethical requirement to inform clients in “reasonably understandable” language (Ethical Standard 3.10, Informed Consent, p. 1065).
Some settings give non-clinical staff the duty of informing prospective clients about certain matters in advance. Although psychologists are not always in control of such policies, they can meet their ethical obligations by (1) providing specialized staff training about informed consent and (2) beginning their own initial session by ensuring that the client is well informed before giving consent to receive services. This gives prospective clients “sufficient opportunity to ask questions and receive answers” (Ethical Standard 10.01, Informed Consent to Therapy, p. 1072). Such conversations raise clinical issues that non-clinical staff should not try to address.
Finally, informed consent is an ongoing process, not a one-time event. For example, the APA Ethics Code requires that limits of confidentiality be discussed not only “at the outset of the relationship,” but also “thereafter as new circumstances may warrant” (Ethical Standard 4.02b, p.1066). The latter responsibility cannot be delegated, because such issues are best addressed when they arise, and that will likely be during a private session with the psychologist.
Integrating Ethical and Legal Training Requirements
Based on these ethical and legal considerations, psychologists can apply the following principles when planning ethics-based staff training :
(1) The first step in creating effective staff training is to create clear written policies that both conform to APA Ethical Standards (2002) and meet the legal requirements that apply in the setting. If the psychologist’s policies are vague, unclear, or inconsistent, so will be the training.
(2) Ethics training can extend beyond the topics in the Ethics Code. Although it “covers most situations” (APA 2002, Preamble, p. 1062), it is “not exhaustive” (Introduction, p. 1061).
(3) On topics with both ethical and legal content, it is recommended that Ethical Standards be presented first, with legal requirements then discussed within that ethical context.
(4) Attorney-led training on any topic should not be treated as a substitute for ethics training on that topic. For example, if law-based HIPAA training is received elsewhere, the ethical implications can be clarified in the confidentiality section of the ethics-based training.
(5) Staff training is not a one-time event. Ethical and legal updates and refresher training are recommended, and staff meetings can address ethical issues when they arise in the setting.
(6) The same basic ethics training can be provided to all personnel, including clinical and non-clinical staff and volunteers, since inappropriate behavior by anyone in the setting can harm a client or reflect badly on the psychologist and on the profession. Further specialized ethics training and ethical consultation can also be available to clinical staff, students, and supervisees, as needed.
(7) Psychologists can assess staff understanding through oral or written examinations, administered immediately after the training and repeated annually, or during job-performance evaluations. Certificates can document completion of training. (See sample at Fisher, 2007.) Psychologists can both monitor staff performance and encourage self-monitoring, with everyone sharing responsibility for maintaining a culture of safety (Knapp and VandeCreek, 2006). In compliance with Ethical Standard 1.08 (Unfair Discrimination Against Complainants and Respondents) psychologists can assure staff that there will be no retaliation for calling attention to areas of ethical concern or alerting the psychologist to ethical breaches in the workplace.
(8) Psychologists can consider asking all personnel, clinical and non-clinical, to sign an ethics contract. (See sample at Fisher, 2007.) This signing can be repeated annually, or as appropriate, to emphasize its importance and to reflect any changes in policy or laws.
Differentiating Ethics Training From Technical Training
The ethics-based training outlined below is different from training required for achieving technical competence; and it is not likely to fulfill state-mandated training requirements for those who assist psychologists in certain types of tasks. This training also differs from the task-specific ethics training that some employees will need for performing specialized duties that have ethical implications, including those who perform billing tasks or who have responsibility for ensuring that proper authorizations are in place before disclosing information to others.
Also, the training described here does not, in itself, qualify non-clinical personnel to perform clinical tasks such as administering, scoring, or interpreting psychological tests. APA has provided guidelines for test user qualifications (Turner, DeMers, Fox, & Reed, 2001), but there are no APA standards about what constitutes adequate training for non-clinical personnel who serve as psychodiagnostic assistants or testing technicians (Koocher & Keith-Spiegel, 2008). There has long been concern about allowing non-clinical personnel to perform complex assessment duties, especially in neuropsychological batteries (Jarvis & Barth, 1994). Hall, Howerton, and Bolin (2005) summarized ethical and practical issues raised by psychologists themselves, as well as by licensing boards, third party providers, and others. There is strong disagreement about this matter, however. Psychologists who use testing technicians should proceed with caution, comply with their state’s laws, and provide specialized ethics training, in addition to the training necessary for technical competence.
Finally, the training manual described below should not be confused with a broad policy manual. It is recommended that the ethics-based training be presented separately, in its own self-contained manual. Otherwise, its importance may be diminished and its ethical intentions obscured by the large number of general administrative matters, business goals, and legally-required details in a general policy manual.
Creating An Ethics-Based Staff Training Manual
The outline in Table 1 (see Appendix) can become the Table of Contents for a staff training manual in any clinical mental health setting. In non-clinical settings, the outline can be revised, using the APA Ethics Code (2002) as a guide. For example, the first six sections of the Ethics Code would apply in all settings (i.e., APA Ethical Standards 1, Resolving Ethical Issues; 2, Competence; 3, Human Relations; 4, Privacy and Confidentiality; 5, Advertising and Other Public Statements; and 6, Record Keeping and Fees). In non-clinical settings, psychologists would need to add details from Ethical Standards 7 (Education and Training) and/or 8 (Research and Publication), while omitting the clinically oriented Ethical Standards 9 (Assessment) and 10 (Therapy).
In the training outline, each topic begins with a review of the relevant APA Ethical Standards. Legal requirements are then discussed within that context, with focus on the ethical implications of each law. With these ethical and legal requirements in view, training can then proceed to the policies and protocols that uphold those requirements in the specific setting. This progression can help staff understand that the policies they are expected to follow in their setting were not determined arbitrarily, but have an underlying ethical basis and important legal implications. To emphasize the ethical focus of the training, staff can be provided with the APA Ethics Code (and in multidisciplinary settings, with ethics codes of other professions).
The sections below illustrate how the staff training might be presented in an outpatient clinical setting, following the outline in Table 1. The training manual can be provided to new staff members when hired, giving them the opportunity to study it and receive individual instruction, while awaiting the next group training based on that manual.
I. Guiding Principles
Training can begin with the underlying ethical concepts to be served by psychologists, as contained in the aspirational General Principles of the Ethics Code (APA, 2002). Staff can be encouraged to describe their own opportunities for exemplifying beneficence (doing good); nonmaleficence (doing no harm); fidelity (trustworthiness); responsibility (clarifying roles, avoiding exploitation); integrity (honesty, truthfulness); justice (fairness); and respect for people’s rights and dignity. By conveying the importance of these concepts and illustrating how to uphold them, psychologists can help staff understand that “as agents of the psychologists who hire them, employees have ethical responsibilities” (Koocher & Keith Spiegel, 1998, p.326).
The waiting area is the “face” that an outpatient mental health setting presents to prospective clients and the public, a holding environment for clients awaiting services, and often the last space clients experience as they leave. Whatever the desired atmosphere, the training can clarify whether staff members have responsibilities there (e.g., interacting with prospective clients, baby-sitting unattended children, quieting loud clients, enforcing a “no cellphones” rule, etc.). If so, this can be spelled out in job descriptions and the implications discussed in training.
III. Informed Consent
Informed consent is such an important ethical concept that it is mentioned or implied in more than a dozen sections of the Ethics Code. (See Fisher, 2006). The specific information that psychologists must provide to prospective clients will vary, depending upon the type of case (APA, 2002). In couple, family, and other multi-client therapy cases, it is especially important to explain in advance, to all participants, the psychologist’s policy about exchange of information, in order to avoid “serious ethical fallout” (Koocher & Keith-Spiegel, 2008, p. 130 ); and staff who interact with clients can be trained to respect the same rules and boundaries. If client information will be shared among members of a clinical team, or with non-clinical staff, it is ethically appropriate to inform clients in advance about this limit on confidentiality.
Legal regulations can also affect the informed consent conversation. The HIPAA Privacy Rule requires that clients be informed both about privacy practices and about their legal rights, including the right to obtain access to records and to receive an accounting of disclosures ( 45CFR .164.520ff). State laws can also contain specific informed consent requirements.
For most non-clinical staff, training can be limited to the core concepts : (1) Clients have the right to be informed about certain things before they give consent for us to provide services or to disclose confidential information. (2) Both parts of the process are important – providing information and obtaining consent. (3) Consent must be voluntary, order to protect the client’s right to give informed refusal instead. The psychologist is responsible for ensuring that clients are adequately informed before they consent to receive services. If non-clinical staff will participate at any stage of this process, the psychologist can provide specialized training and perform followup client interviews. (See Protecting Clients’ Informed Consent Rights, above.)
Training can include discussion of the fact that “collaterals” – those individuals (spouses, parents, friends) who participate in services provided to others – do not have the same rights as the primary client. Nevertheless, it is ethically important to inform them of their rights before they consent to participate (APA Insurance Trust, 2006; Fisher, 2009).
IV. Client Privacy and Confidentiality
E mployees should receive detailed training about confidentiality, whether or not the setting is subject to HIPAA training requirements (Bennett et al., 2006). If staff will not receive HIPAA training elsewhere, it can be incorporated here, using a HIPAA training summary such as the one provided by Knapp (2005). HIPAA compliance is required only if information is transmitted electronically; but as the use of electronic records expands, more settings may need to comply. Furthermore, following key HIPAA requirements can protect clients’ rights in any setting (Bennett et al., 2006; Knapp & VandeCreek, 2006; Koocher & Keith-Spiegel, 2008).
Ethical Obligations & Legal Requirements
Fisher (2008) provided a model for clarifying ethical responsibilities about confidentiality and for placing legal requirements into ethical context. It illustrates how the APA Ethical Standards about confidentiality might be organized for training purposes, but it is also consistent with the ethics codes of other mental health professions that might be represented in the setting.
Legal requirements, including state confidentiality laws and federal HIPAA regulations, can be integrated into this ethical model. When placing HIPAA regulations into ethical context, it is important to note that although they legally allow broader disclosures than may be ethically appropriate in most settings, they do not legally require psychologists to disclose anything.
Consequences of Inappropriate Disclosures
It should be explained that breaches of confidentiality have consequences. These can include potential harm to clients because of inappropriate disclosures (e.g., clinical disruptions, personal harm, or loss of civil rights); possible legal and financial ramifications for the psychologist (e.g., HIPAA monetary fines; licensing board censure; malpractice suit); and possible risks to staff who inappropriately disclose (e.g., dismissal; possible legal consequences).
Specific Policies in This Setting For Protecting Privacy & Confidentiality
The training can describe in detail the policies, procedures, and protocols that protect the client’s physical privacy, protect the client’s right to confidentiality (i.e., non-disclosure), and govern how staff will behave when faced with a demand for information. In preparation for training about privacy, staff can be asked to notice areas where privacy might be at issue. Non-clinical staff can address situations that affect them directly (e.g., visual or auditory barriers between staff areas and client waiting areas; screening computers) and can recommend ways in which clinical staff might better protect client privacy (e.g., sound-proofing treatment rooms).
Non-disclosure training can include discussion of both planned disclosures and “accidental” breaches of confidentiality. Table 1 includes two examples of how an ethical rule can be presented as the basis for specific policies. The training can emphasize that neither office efficiency nor staff convenience can take priority over a client’s confidentiality rights. Role-playing can be useful for demonstrating expected staff behavior in response to demands from family members, attorneys, or others. Training regarding security of client data will overlap with HIPAA training, where applicable, and should include rules about authorization required for removing identifiable client information from the setting, whether on paper, CD files, or laptops.
V. Relationships With Clients
The APA Ethics Code (2002) contains several Ethical Standards relevant to client relationships. (See, for example, the nine Standards in Section 3, Human Relations.) Discussing these in detail will help staff members understand the ethical obligations that psychologists must uphold. Although policies about relationships with clients may not need to be as restrictive for non-clinical staff as for clinicians, they will be guided by the same protective intent, so some of the professional r esources available to psychologists about dual relationships and boundaries can also be useful in preparing this section of the staff training. (See, for example, Pope, 2004)
. Role playing can be useful here. Non-clinical staff can create vignettes and play the role of clients, while clinical staff demonstrate how to respond (or not respond) to client overtures and clarify when client questions must be referred to clinical staff. Policies about personal staff-client relationships may vary across roles and settings, but expectations should be made explicit.
VI. Billing Clients and Third Parties
Explaining the ethical underpinnings first will generate a staff focus on protection of clients’ rights. Specialized training, when conducted within that ethical context, takes on an importance beyond the legal, clerical, or technical mechanics of the billing process.
Informed consent about reimbursement . Relevant APA Ethical Standards (2002) include 6.04 (Fees and Financial Arrangements), 9.03 (Informed Consent in Assessments) and 10.01 (Informed Consent to Therapy). It should be emphasized that the psychologist retains responsibility for ensuring that clients are appropriately informed before they consent to accept a particular financial arrangement or agree to submit claims for third party reimbursement; and this applies regardless of who is involved in the discussion of fees and billing arrangements.
Staff can be trained to disclose nothing to a third party payer “automatically.” Whether the third party is a family member, agency, insurer, or managed care entity, the fact that they are paying the bill does not, in itself, entitle them to any information about the client without the client’s explicit consent. A s with any disclosure, obtaining consent involves more than obtaining a signature on a form. Before giving consent, the client must first be informed about the content and implications of that specific disclosure (Bennett et al., 2006). After the initial claim, i f a payer requests further information, staff should be trained to consult the clinician, to ensure that the client has given consent for that further level of disclosure (Acuff et al., 1999; Fisher, 2008) .
Accuracy. APA Ethical Standard 6.06 (Accuracy in Reports to Payors and Funding Sources) requires psychologists to “take reasonable steps to ensure the accurate reporting of the nature of the service provided or research conducted, the fees, charges, or payments, and where applicable, the identity of the provider, the findings, and the diagnosis” (p. 1068). Well-trained s taff can play an important role in ensuring that information sent to third party payers is accurate. They can be encouraged to raise questions if they suspect billing errors and to seek the psychologist’s consultation or review before the claim is transmitted to a third party for reimbursement.
Contracts. M any clinicians sign legally-binding provider contracts. These stipulate the conditions of reimbursement, and some prevent contracted providers from providing self-pay services to those covered by their plan. Billing staff may need specialized training about such restrictions, to avoid submitting claims inconsistent with the contract.
Accuracy. It is legally important that the information sent to payers be accurate. A provider who is reimbursed based on inaccurate information may not only be required to return the overpayment, but may also be considered legally liable. Staff can play an important role in avoiding charges of billing fraud (Harris, 2000) if they remain alert about accuracy and are trained to consult the psychologist with any questions about the information being submitted.
HIPAA: Some third party payers require electronic claims submission. If information is transmitted electronically, the setting is legally required to comply with all HIPAA regulations.
VII. Other Policies with Ethical and/or Legal Implications
Staff can be helped to understand both their job responsibilities and the limits of their responsibilities. They can be encouraged to take initiative, but trained not to step beyond their job description without supervisor approval, especially not to move into tasks with clinical implications or to obtain access to more client information than their job requires (Knapp, 2006). Crisis or emergency protocols not covered elsewhere can be included here.
This final section of the training can also contain reminders about the importance of fostering ethical compliance throughout the workplace, supporting each other in complying with ethical standards, and monitoring their own behavior as well as that of others. The overall goal is to create and maintain a culture of safety (Knapp &VandeCreek, 2006) in which clients and their rights are best protected because staff have been encouraged to reach for the ethical ceiling (Bersoff, 1994).
VIII. Demonstrating Understanding and Signing an Ethics Contract
HIPAA regulations require providers to document the confidentiality training (45CFR 164.530(b) (2) (ii)). Knapp (2005) suggests that staff demonstrate their understanding and has provided a sample HIPAA test for that purpose. This could easily be expanded to include the other topics covered by this ethics-based training. To punctuate the importance of ethical compliance, that testing can be repeated annually, as part of job-performance evaluations.
HIPAA requires covered providers to “have and apply appropriate sanctions against workforce members who violate privacy policies” (HHS, 2003, p. 16). Psychologists can choose to require broader ethical compliance by having staff sign and abide by an ethics contract as a condition of employment. (See sample at Fisher, 2007.) If staff must comply with the APA Ethics Code (2002), as recommended by the APA Insurance Trust (Bennett et al., 2006), that should be stipulated in the employment contract.
Advantages of Ethics-Based Staff Training
|1. Generating Ethical Clarity: Constructing an ethics-based training manual requires sychologists to clarify their policies and verify their compliance with the Ethics Code (2002).2. Fostering Forethought: Providing training that separates ethical standards from legal mandates can help psychologists foresee potential ethical/legal conflicts and adopt in advance a structured problem-solving approach for responding ethically if they arise (Knapp et al., 2007).
3. Elevating Ethical Aspirations: Helping staff maintain ethical practices will not only create a culture of safety in which clients are protected in the current setting, but can also help raise ethical standards in other settings where those employees might later work.
4. Fostering Collaboration: Clinicians often complain of isolation. Although training must be setting-specific, psychologists do all share the same ethical standards; this allows peer consultation when creating ethics-based policies, and pooling of resources for planning training.
5. Mentoring the Next Generation: “(T)he strongest weapon against professional misconduct may be the education of trainees” (Vasquez, 1992, p. 196). Participation in ethics-based training in all their clinical placements can elevate the ethical awareness of the next generation of psychologists. Clinical students’ ethical violations often involve breaches of confidentiality (Fry, vanBark, Weinman, Kitchener, & Lang, 1997), so it is important that their enculturation include expectations for high ethical standards about that aspect of practice.
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Table 1: Sample Table of Contents for Ethics-Based Staff Training Manual
in an Outpatient Mental Health Setting
|I. Guiding Principles|
|III. Informed Consent|
|A. Ethical Standards Requiring Informed Consent
B. Legal Requirements and Implications (state laws; HIPAA)
C. Our Policies Protecting Clients’ Informed Consent Rights
|1. Obtaining Initial Informed Consent Before Providing Services
2. Obtaining Informed Consent Before Disclosing Information
3. Conducting Ongoing Informed Consent Conversations
|IV. Privacy and Confidentiality|
|A. Ethical Standards About Confidentiality
B. Legal Requirements About Confidentiality (state laws; HIPAA)
C. Ethical & Legal Consequences of Unethical/Unlawful Disclosures
D. Our Policies Protecting Privacy & Confidentiality In This Setting
|1. Protecting Client’s Right to Privacy While In Our Office|
|2. Protecting Client’s Right to Confidentiality (Non-Disclosure)|
|a. Rule : Disclose Information Only With Client Consent
—-Policies : Handling Requests for Information; Telephone Interactions
b. Rule : Protect Confidentiality in Storing, Transmitting, Disposal of Information
—-Policies : Using Computer, Copier, FAX, E-Mail; Transporting Data, etc.
|3. Policies About Responding to Legal Demands (Subpoenas, Attorney Requests, etc.)|
|V. Relationships With Clients (in Therapy, Assessment, and Consultation Settings)|
|A. Ethical Standards About Boundaries & Dual Relationships
B. Legal Implications of Client Relationships
C. Our Policies About Relationships with Clients
|VI. Billing and Third Party Reimbursement|
|A. Ethical Standards Related to Billing & Reimbursement
B. Legal Requirements and Limitations
C. Our Policies re Staff Responsibilities (Billing, Transmission of Claims, etc.)
|VII. Other Policies With Ethical and/or Legal Implications|
|A. Maintaining Competence and Remaining Within Job Description
B. Understanding Procedures in Non-Clinical Emergencies (e.g., computer failure; flood; etc.)
C. Maintaining a “Culture of Safety” — Monitoring Ethical Compliance in the Workplace
|VIII. Demonstrating Understanding & Signing Ethics Contract|
|APPENDIX TO TRAINING MANUAL: (Optional)|
|APA Ethics Code (and in multidisciplinary settings, also other Ethics Codes)
Summaries of Relevant Legal Requirements (state laws; HIPAA)
Documents (e.g., Sample Certificate Documenting Training; Ethics Contract
*MARY ALICE FISHER received her PhD from the University of Virginia Curry Programs in Clinical and School Psychology and is currently a member of the adjunct faculty there. She also maintains an independent clinical practice in Charlottesville, Virginia. She is founding director of the Center for Ethical Practice, Inc., in Charlottesville, through which she provides ethics seminars, continuing education workshops, consultation services, and other resources for mental health professionals.
The author gratefully acknowledges the materials and consultation provided by Samuel J. Knapp, Ed.D.
Fisher, M.A. (2009). Professional Psychology: Research and Practice, Vol. 40, No. 5, 459–466
© 2009, American Psychological Association
Correspondence concerning this article should be addressed to
Mary Alice Fisher, Ph.D., Executive Director, The Center for Ethical Practice, Inc., 934 East Jefferson Street, Charlottesville, VA 22902.
Email: Fisher at Virginia dot edu
This article may not exactly replicate the final version that was published in the APA journal. It is not the copy of record.