10-17-05
Ethics in Practice Whose Responsibility
Deborah Yarett Slater
Summary
Ways to ensure compliance with ethical and legal parameters in all practice settings
The resurgence in the job market for both occupational therapists and occupational therapy assistants is good news to educators, students, and practitioners alike. In some cases, sign-on bonuses and other incentives seem to be making a comeback. This would appear to be a positive sign for the profession, but is it coming at a price?
For a number of years, reimbursement in all clinical settings has generally been capitated, often at a level that barely covers costs and expenses. It is usually linked to a diagnostic category that estimates the resources required to care for the client. These resources include equipment, nursing, therapy, medical supplies, room and board, and so forth. Salaries, although increasing only in small increments, represent a significant expense against limited and fixed reimbursement. The cost of advances in technology has also added to rising expenditures. As a result of these various factors, it has become increasingly difficult for facilities to break even or to make even a modest profit. Publicly held companies, even in health care, need to show profits to their shareholders.
In an effort to earn income, given all the regulatory and other constraints, some facilities and contract staffing companies have mandated productivity requirements, documentation guidelines, and general rules about clinical management of clients that appear to be based primarily on administrative decisions to meet designated financial goals. These requirements often do not rely on the clinical judgment of therapists or take into account the individual needs or capabilities of the client. As health care focuses on business practices and profits, there has been an "an erosion of the appropriate professional moral climate from service to self-interest in all of its forms...and the opposite of moral courage: indifference and apathy" (p. 215).1
Although this trend seems to be more prevalent in skilled nursing facilities (SNFs) under the prospective payment system (PPS), and especially in contract staffing companies that provide employees for these facilities, it is also reported in other settings. Recently, an increasing number of questions have arisen from American Occupational Therapy Association (AOTA) members about their employers' administrative practices and directives. The questions center on ethical and legal concerns related to client safety, personal liability and licensure, and potential Medicare fraud. These situations may include:
- Admitting clients who are independent, then requiring therapists to "be creative" in developing goals and treatment plans.
- Admitting clients for rehabilitation who are very acute or unstable, placing them in "high" or "ultra-high" categories to maximize reimbursement, then mandating that therapists provide the hours of therapy these categories require. This may happen in spite of the client's inability to tolerate extensive therapy and, according to some reports, therapists are asked to record rest periods as minutes of treatment.
- Having nonclinical administrators or clinical directors in other disciplines dictate the frequency or length of treatment without input from the evaluating or treating occupational therapist.
- Asking a new therapist to "fill in" missing documentation (on clients they have not treated or who may already have been discharged), which should have been done by an occupational therapist or occupational therapy assistant at the time of treatment, so the facility can bill for those sessions after the fact.
- Not permitting clinicians to discharge clients when their goals have been met unless the discharge is "approved" by an administrator (extending length of stay and reimbursement).
- Requiring excessive group treatment and calling it "concurrent treatment" when it is not appropriate to meet the client's goals.
- Therapists and clients alike feeling like "failures" for their inability to achieve the proscribed minutes of therapy and having to provide explanations for the shortfall.
These situations can lead to loss of autonomy in clinical decision making, a potential feeling of disrespect from colleagues and, in many cases, ethical and legal unrest. The dilemmas and stress increase when therapists are told that these practices are acceptable, perhaps the industry standard, and that "others" can meet these demands. An additional source of concern is members who report that less experienced therapists don't seem to recognize that there is a problem with these directives. Therapists may believe that when they are following a supervisor's or administrator's directive, any behavior is acceptable and they and their licenses are protected.
In fact, each occupational therapist and occupational therapy assistant has a personal and professional responsibility to know and understand regulations that govern his or her practice. Principle 5 of the Occupational Therapy Code of Ethics (2005)2 (the Code) states that "Occupational therapy personnel shall comply with laws and Association policies guiding the profession of occupational therapy." This principle includes state practice acts where applicable, Medicare and other payer regulations, and so forth. Understanding regulations is as much a part of one's job and professional role as clinical knowledge. Lack of knowledge is not an acceptable excuse and will not stand up to ethical or legal scrutiny. Therapists must provide treatment, document, and bill according to Medicare requirements for coverage of occupational therapy services (e.g., skilled services that are reasonable and necessary to meet realistic, objective goals in a specified time frame). In addition, there are clear rules about group treatment that apply to Medicare Part A in SNFs: the group may not exceed four patients and may not exceed 25% of each client's total treatment time.
The Code can provide assistance in responding to these situations. Principle 6C of the Code states that any form of communication (which includes written documentation) should not contain "false, fraudulent, deceptive or unfair statements or claims."2 Guideline 1.6 of the Guidelines to the Occupational Therapy Code of Ethics also provides relevant guidance: "Occupational therapy practitioners terminate services when the services do not meet the needs and goals of the service recipient, or when services no longer produce a measurable outcome" (p. 881).3 These official documents, as well as relevant payer regulations, can provide support for practitioners confronting potentially unethical situations or managers who create them.
At a more fundamental level, professionals have the public's trust and operate with relative freedom and autonomy because they have a code of ethics and are generally considered altruistic. Situations like those reported directly challenge two core ethical concepts: beneficence and nonmaleficence. Principle 1 of the Code states "Occupational therapy personnel shall demonstrate a concern for the safety and well-being of the recipients of their services (Beneficence)."2 Principle 2 states "Occupational therapy personnel shall take measures to ensure a recipient's safety and avoid imposing or inflicting harm (Nonmaleficence)." Therapy means "doing good" and a "duty to confer benefits to others." Conversely, it means "not harming or causing harm to be doneÉ" and a duty to "ensure [emphasis added] that no harm is done."2 Therefore clinicians have a responsibility to provide treatment that will, in their judgment, benefit the client, not do any harm, and then to accurately document and bill for the services delivered.
Dealing with organizational pressures to use financial goals as the basis for action can be stressful and may result in negative consequences. These consequences can be severe and have both legal (fines, prison time) and ethical implications (reprimand, censure). However, moral courage requires not only identifying ethical dilemmas and knowing what is good and right, but also doing it.1 Rather than self-serving behaviors or excuses to justify one's actions, the moral imperative to action stems from true altruism or caring about others.1 Whistleblower laws can provide some protection from retribution, but job loss or demotion may, in some cases, be realistic deterrents. Although therapists can face difficult choices, being prepared with creative problem-solving skills and objective strategies may assist in responding to potentially unethical, and sometimes illegal, directives.
A first step may be to educate employers and colleagues. They should understand that it is in their best interest, as well as a legal requirement, to be compliant with regulations and that doing so will protect them against liability. Many resources are available from AOTA, including official documents such as the Occupational Therapy Code of Ethics (2005)2; Guidelines to the Occupational Therapy Code of Ethics3; Scope of Practice4; Standards of Practice for Occupational Therapy5; and Guidelines for Supervision, Roles, and Responsibilities During the Delivery of Occupational Therapy Services (2004).6 The Reference Guide to the Occupational Therapy Code of Ethics7 contains advisory opinions and other articles relating to ethical challenges in practice situations. Staff in the Ethics Office at AOTA are also available to discuss ethical dilemmas and provide assistance in resolving them (e-mail ethics@aota.org). In addition, knowledge and availability of relevant Medicare and other payer regulations, as well as current written updates are critical components of every practitioner's professional library. These are available on the AOTA Web site in the Reimbursement section and on the Centers for Medicare & Medicaid Services (CMS) Web site (http://www.cms.hhs.gov/default.asp). CMS also maintains a Hotline in the Office of the Inspector General (OIG), and provides information on how to report alleged fraud at http://oig.hhs.gov/hotline.html.
Practitioners are expected to be familiar with, make others aware of, and apply the Code to their everyday practice. Given the business-driven focus in the health care industry, practitioners are likely to encounter ethical and legal dilemmas in their workplace. It is ultimately a personal and professional responsibility to not only recognize unethical situations but to take action to expose and correct them to the extent possible.
References
1. Davis, C. (2005). Educating adult health professionals for moral action: In search of moral courage. In R. B. Purtilo, G. M. Jensen, & C. B. Royeen (Eds.), Educating for moral action: A sourcebook in health and rehabilitation ethics (pp. 215, 217). Philadelphia: F. A. Davis.
2. American Occupational Therapy Association. (in press). Occupational therapy code of ethics (2005). American Journal of Occupational Therapy, 59.
3. American Occupational Therapy Association. (1998). Guidelines to the occupational therapy code of ethics. American Journal of Occupational Therapy, 52, 881-884.
4. American Occupational Therapy Association. (2004). Scope of practice. American Journal of Occupational Therapy, 58, 673-677.
5. American Occupational Therapy Association. (in press). Standards of practice for occupational therapy. American Journal of Occupational Therapy, 59.
6. American Occupational Therapy Association. (2004). Guidelines for supervision, roles, and responsibilities during the delivery of occupational therapy services (2004). American Journal of Occupational Therapy, 58, 663-667.
7. Scott, J. B. (Ed.). (2003). Reference guide to the occupational therapy code of ethics. Bethesda, MD: American Occupational Therapy Association.
Deborah Yarett Slater, MS, OT/L, FAOTA, is a practice associate for AOTA and liaison to the Commission on Standards and Ethics.
Reference Information:
Slater, D. Y. (2005). Ethics in practice: Whose responsibility? [Electronic Version]. OT Practice, 10(19), 13-15.
©Copyright 2005. The American Occupational Therapy Association. All rights reserved.
