Transcript Slide 1

Gerald P. Koocher, Ph.D., ABPP
Simmons College

453 complaints (59% board complaints).
 Suicide 17
 Sexual abuse 12
 Employment practices 5
 Non sexual boundary violations/multiple
relationships 4
 Billing Impropriety 2
 Homicide by patient 1
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Sex
Suicide
Child Custody
 Release of records
 Role confusion/conflict
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Confidentiality
Record Keeping
5
 The 4 Ds: Dereliction of Duty
leading Directly to Damages
 When does a professional duty apply?
 What constitutes dereliction?
 How can one demonstrate direct
causation?
 How can we measure damages?
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Perfection is not the standard
 Mistake or “judgment call” error
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 People cannot avoid mistakes (but a mistake does not =
negligence)
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Departure from standard of care
 Many practitioners would not do it

Gross negligence
 Extreme departure from usual professional conduct
 Most practitioners would not do it
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 Consider:
 Patient Risk Characteristics
 Situation or Contextual Risk
 Potential Disciplinary Consequences
Modified by:
 Therapist’s “Personal Toolbox of
Skills”
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Nature of Problem
History
Diagnosis and Level of Function
Expectations
Therapeutic readiness
Financial Resources Including Insurance
Coverage
Litigiousness/court involvement
Social Support Network
9
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Nature of relationship
 Therapeutic alliance
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Real world consequences
Setting
 Rural versus urban
 Solo practice versus institutional practice
 Type of service requested
 CBT
 Family therapy
 Forensic Evaluation
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10
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Psychological makeup/personal issues
 Personal and professional stress levels
Training background/qualifications
 Experience
 Resources
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 Consultation
 Access to other providers
 Involvement with professional groups
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Risk management skills/self-discipline
 Risk assessment skills
 Documentation skills and implementation
 Willingness to seek and follow good advice
 Knowledge of ethics code and ability to
analyze situations from ethical perspective
 Limit setting abilities
12
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Mental health
practitioners train in a
behavioral science model.
We believe that an
individual applying
rigorous experimental
methods can discover
significant truths within
ranges of statistical
certainty.

Lawyers train as
advocates.
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Lawyers believe that the
search for truth depends
on a vigorous adversarial
cross-examination of the
facts.
Page 15
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Behavioral scientists
seldom give simple
dichotomous answers
to questions.
We prefer to use
probabilities, ranges,
norms, and continua
that reflect the
complexity of human
differences.
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Lawyers learn to “try”
or weigh facts.
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Lawyers expect clear,
precise, unambiguous
decisions, They seek
to establish bright
lines and clear
dichotomies.
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We strive to empathize with
our clients and show them
unconditional positive
regard.
Little progress will occur in
our work with clients, if we
do not like/respect each
other.
We constantly collect data
and try to ask all the
important and sensitive
questions.

Attorneys believe that
they can (and must) at
times defend people
they detest.
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Attorneys may choose
not to ask their clients
certain questions
(e.g., “Did you do it?”)
in order to defend
them vigorously.
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Levels of Proof in the Legal System
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 Patients who organize their internal object
world into hated and adored objects
 Borderline Personality Disorder
 Narcissistic Personality Disorder
 Dissociative Identity Disorder (MPD)
 PTSD (complex)
 Patients who were abused as children or
are in abusive relationships
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Potentially suicidal patients
 Conduct frequent risk assessment utilizing
current, evidence based methods essential
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Potentially violent patients
Patients involved in unrelated lawsuits
Patients with recovered
memories of abuse
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Just trying to help a friend, client, etc.
The “vacation time referral”
Anticipating litigation
 (I didn’t see that coming!)
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To whom do I owe what duties
 Collaterals
 Clients for limited purpose
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Charles Sell, a dentist charged with committing 63 counts of Medicaid
fraud, was determined by psychiatric evaluation as incompetent to stand
trial. The government psychiatrists recommended psychoactive drugs to
restore competency. Having experienced negative reactions to such
drugs in the past, Sell refused. As a result, he was incarcerated in a
forensic mental institution for 7 years, a longer period of time than the
maximum sentence for the crime with which he was charged.
On June 16, 2003, Justice Breyer delivered the 6-3 Supreme Court
decision: “We conclude that the Constitution allows the Government to
administer those drugs, even against the defendant’s will, in limited
circumstances, that is, upon satisfaction of conditions that we shall
describe. Because the Court of Appeals did not find that the requisite
circumstances existed in this case, we vacate its judgment.”
Sell won his right to refuse to take psychoactive drugs, but his victory
seemed a hollow one at substantial cost.
Don’t treat the system
casually!
 Get formal training and
mentored experience.
 Seek judicial
appointment, if
possible.
 Clarify roles and
expectations with all
parties at the outset.

Deficiencies and abuses in professional
practice.
Inadequate familiarity with the legal
system and applicable legal standards.
Inappropriate application of assessment
techniques.
Presentation of opinions based on partial
or irrelevant data.
Overreaching by exceeding the limits of
psychological knowledge of expert testimony.
Offering opinions on matters of law.
 Loss of objectivity through inappropriate
engagement in the adversary process.
 Failure to recognize the boundaries and
parameters of confidentiality in the custody
context.

Provide a statement of adult parties’ legal rights
with respect to the anticipated assessment
 Give a clear statement regarding the purpose of the
evaluation.
 Identify the requesting entity.
▪ (Who asked for the evaluation?)
 Describe the nature of anticipated services.
▪ (What procedures will you follow?)
 Explain the methods to be utilized.
▪ (What instruments and techniques will you use?)
 Specify whether or not the services are court ordered.
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Delineate the parameters of confidentiality.
 Will anything be confidential from the court, the parties, or the public?
 Who will have access to the data and report? How will access be provided?
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Provide information regarding:
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The evaluator’s credentials;
The responsibilities of evaluator and the parties;
The potential disposition of data
The evaluator’s fees and related policies;
What information provided to the child, and by whom?
Any prior relationships between evaluator and parties;
Any potential examiner biases (For example: presumptions regarding joint custody).
Consent documentation
 Obtain consent to disclose material learned during evaluation in litigation.
 Obtain waiver of confidentiality from adult litigants or there legal representatives.
 Provide written documentation of consent.
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
Therapists who engage in inappropriate role blending
are often relatively inexperienced.
 Many trained in graduate programs where students
developed complex relationships with educators and
supervisors.
 Similarly, the internship or residency period often involves
role blending, including social, evaluative, and business
related activities
 Some new therapists may have had insufficient opportunity
to observe professionals with appropriate boundaries in place
or experienced appalling supervisory models, involving sexual
advances and other improper behavior as students.
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
The mid-career period can prove risky for those therapists
whose profession or life in general has not panned out
according to their own expectations.
 Divorce or other family-based stresses involving their teenage or young adult
children, onset of a chronic illness, and apprehension about aging are among
other mid-career difficulties that can impair professional judgment. The majority
of therapists who engage in sexual relationships with their clients are
middle-aged.
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Another elevated risk period can occur at the far end of the
career cycle.
 Sometimes older therapists have, perhaps without full awareness, come to see
themselves as having evolved beyond questioning or having earned some sort of
“senior pass” bequeathing the freedom to do whatever they please.
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
Who, what, and to whom…
 Child abuse
 Elder abuse
 Dependent person abuse
 Others…
▪ Abuse of former client(s) (Minnesota)
▪ Unsafe drivers (Pennsylvania)
▪ Use of tetrahydrocannabinol or has alcoholic beverages
during pregnancy (Minnesota)
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POSTED: 6:35 am EDT April 9, 2009
http://www.theindychannel.com/news

NORTH VERNON, IN -- A psychologist
was arrested in his Jennings County
office Wednesday on a charge of failing
to report child abuse or neglect. Police
said Dr. Robert Dailey did not report a
case in which a juvenile suspect in a
child molestation investigation told him
of inappropriately touching another
juvenile during an appointment. The
juvenile's case went through the
juvenile justice system.
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“A person mandated to report… shall immediately
report to the local welfare agency if the person knows
or has reason to believe that a woman is pregnant and
has used a controlled substance for a nonmedical
purpose during the pregnancy, including, but not
limited to, tetrahydrocannabinol, or has consumed
alcoholic beverages during the pregnancy in any way
that is habitual or excessive.
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Any person may make a voluntary report if the person
knows or has reason to believe that a woman is
pregnant and has used….
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An oral report shall be made immediately by
telephone or otherwise. An oral report made by a
person required to report shall be followed within
72 hours, exclusive of weekends and holidays, by
a report in writing to the local welfare agency.
Any report shall be of sufficient content to
identify the pregnant woman, the nature and
extent of the use, if known, and the name and
address of the reporter.”
 Legal representative of estate have authority
unless specifically prohibited by state law (HIPAA
Privacy Rule)
 Not required if licensed therapist decides, in the
exercise of reasonable professional judgment,
that treating an individual as personal
representative is not in patient’s best interest
(HIPAA Privacy Rule)
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
Middlebrook, D. W. (1991). Anne Sexton: A
biography. New York: Vintage Books.
 Martin Orne, MD, PhD

Swidler & Berlin and James Hamilton v. United
States U.S. 97-1192.
 Opinion by Rehnquist, joined by Stevens, Kennedy, Souter, Ginsburg,
and Breyer, held that notes were protected by attorney-client privilege
because both a great body of case law and weighty reasons support
the position that attorney-client privilege survives a client's death,
even in connection with criminal cases.
▪ Opinion cited: Jaffee v. Redmond, 518 U.S. 1, 17-18, 135 L. Ed. 2d 337,
116 S. Ct. 1923 (1996)
Page 42
 Activities
 Concerns
 Data acquisition
 Confidentiality
 Data analysis
 Competence
 Data
 Quality
Transmission
 Data Storage
 Service Delivery
 Safety
 Convenience

Incentives
 Third party claims
filing incentives
 Governmental
incentives
 Market segment
incentives

Limitations
 Access
▪ Equipment
▪ Bandwith
▪ Cost
 Consumer resistance
 Provider resistance
You will most likely soon become involved with
electronic client contact and service delivery
(if you’re not already).
•
Client communications content continuum
– Professional to professional consultation
– Schedule or reschedule client appointments
– Provide clients with advice between sessions
– Provide emergency intervention for clients
– Use as a primary service delivery mode to
clients
– Social networking issues
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Client communications telemetry modality
continuum
 Voice and visual
 Voice only
Cordless, Cellular, VOIP (Voice over Internet Protocols)
Electronic mail
 Routine messages
 Attachments and records transmission
 “Push” mail to HHDs (hand held devices)

Who regulates the
practice?
 Where do the
services take
place?

What are (or will be
the standards of
care?
 Paper, magnetic, optical, and
crystalline media
 Safety
▪ Encryption
 Permanence
 Portability
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Reading and deleting e-mails might be
customary when e-mailing for personal use. But
health care professionals incorporating e-mail
into their practices might have to get out of that
habit and enter the unfamiliar territory of e-mail
archiving.
Unlike a telephone conversation that ends with
no formal recording an e-mail message is a
written record, and it must be maintained if it is
considered a health record.
Data/Voice
Encrypted or
unencrypted
 Error potential
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•
Carnivore is an e-mail wiretap system developed by the FBI
to read messages circulated amongst suspected criminals
and terrorists... and everybody else.
•
Echelon refers to the electronic global system which can
capture and analyze virtually every phone call, fax, email
and telex message sent anywhere in the world. Every word
of every message in the frequencies and channels selected
at a station is automatically searched.
•
Tempest is a code word for electromagnetic snooping. It's
usual for military electronics to be "Tempest hardened" in
order to shield them from high-tech spying, disruptive
interference, and EMPs.

“Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and
Obstruct Terrorism (USA PATRIOT ACT) Act of
2001”
 Sec. 215. Access to Records and Other Items
Under the Foreign Intelligence Surveillance Act
(FISA).
▪ Title V of the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1861 et seq.) was amended by striking
sections 501 through 503 and inserting the following:
•
Sec. 501. Access to Certain Business Records for
Foreign Intelligence and International Terrorism
Investigations.
– (a)(1) The Director of the Federal Bureau of Investigation or a
designee … may make an application for an order requiring the
production of any tangible things (including books, records,
papers, documents, and other items) for an investigation to
protect against international terrorism or clandestine
intelligence activities….
– (c)(1) Upon an application made pursuant to this section, the
judge shall enter an ex parte order as requested, or as
modified…
– (2) (d) No person shall disclose to any other person (other than
those … necessary to produce the tangible things…) that the FBI
has sought/obtained … things…
– (e) A person who…produces … things under an order … section
shall not be liable to any other person...
Theresa Marie Squillacote (AKA: Tina, Mary
Teresa Miller, The Swan, Margaret, Margit, Lisa
Martin, and her husband, Kurt Stand; convicted
of espionage.
 For 550 days the FBI maintained secret
electronic surveillance of the couple's bedroom,
and intercepted telephone calls with her
psychotherapist (Jose Apud, MD), and attempted
to lure the woman into damaging disclosures.

 Theresa
- born in Chicago in November 1957,
earned a master's degree at the University of
Wisconsin, and a law degree from Catholic
University in Washington, DC.
 Kurt fled from Germany during Hitler's reign,
but maintained contacts with friends in East
Germany. In the 1970s, he began working for
the East German intelligence agency. His work
focused on recruiting agents in the USA. In
1981 he recruited Theresa. The married in
1983.

Theresa Marie Squillacote served as a senior
staff attorney in the office of the Deputy
Undersecretary of Defense for Acquisition
Reform until January 1997. Prior to her
Pentagon assignment, she worked for the House
Armed Services Committee.

Kurt Alan Stand worked as a regional
representative of the International Union of
Food, Agricultural, Hotel, Restaurant, Catering,
Tobacco and Allied Workers Association
FBI BAP Advice…

An FBI Behavioral Analysis Program team (BAP)
drafted a personality report for use in the investigation
based on her conversations with her psychotherapists.

The BAP noted that she had depression, took
medication, and had "a cluster of personality
characteristics often loosely referred to as 'emotional
and dramatic.”

The BAP team recommended taking advantage of
Squillacote's "emotional vulnerability," and described
the type of person to whom she might pass on
classified materials.
“LS ignores and neglects her children; her
clandestine activities take precedence in her life. She
suffers from cramps and is taking the
antidepressants Zoloft and [sic] Diserel.
 LS has wide mood swings. She has dependent
childish relationships with men. She is totally selfcentered and impulsive. “
 The type of UCA (undercover agent) who approaches
her will be very important.


Because of the above traits—
 It is most likely that LS will be easily persuaded if an
approach is made to her that plays more to her
emotions.
 He might be depicted as the son of communists who
left for South Africa in the late 1940s or early 1950s.
 The UCA should make a friendly overture by bringing
her a personal gift such as a biography, which is her
favorite type of book.
 The UCA would act professional and somewhat aloof
yet responsive to her moods.

Part of the
American Recovery
and Reinvestment
Act of 2009 (H.R. 1),
the economic
stimulus bill that the
President signed
into law on February
17, 2009 (P.L. 111-5).

Intended to promote
the widespread
adoption of health
information
technology (HIT) to
support the electronic
sharing of clinical
data among
hospitals, physicians,
and other health care
stakeholders.

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Imposes more stringent regulatory
requirements under the security and
privacy rules of HIPAA
Increases civil penalties for a violation of
HIPAA
Provides funding for hospitals and
physicians for the adoption of health
information technology, and requires
notification to patients of a security breach.
Other new privacy and security requirements in HITECH include:

Covered entities must honor a patient’s request to withhold PHI (private health
information).

Covered entities must limit use or disclosure of PHI to a “limited data set” or to
the minimum necessary to accomplish an intended purpose.

When requested, covered entities must provide patients with an audit trail of all
disclosures of PHI made within the past three years.

Employees of covered entities or other individuals who knowingly access, use, or
disclose PHI for improper purposes will face criminal penalties.

Civil penalties for violations under HIPAA are increased, depending on the
conduct.

The federal government must impose penalties for willful violations.

The penalties range from $100 per violation with a maximum of $25,000 per year, to the
maximum penalty of $50,000 per occurrence and $1.5 million per year.

…any data collector that owns or licenses
computerized personal information that includes
personal information concerning a consumer
shall notify the consumer that there has been a
security breach following discovery…

http://www.leg.state.vt.us/statutes/fullsection.cf
m?Title=09&Chapter=062&Section=02435

Uncertainty
 What’s happening in my profession and the health care system?
 Will I get/keep a job?

Economic insecurity
 What’s happened to my income?
 What’s happened to my savings?

Lifestyle changes
 Will I ever retire?
 If I have retired, must I return to work?

Technological advances
 How can I keep up from a knowledge and economic
perspective?

Consumer demand
 Can I provide what consumers want?
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Denial-Anger-Bargaining-DepressionAcceptance? (per Kübler-Ross)
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Stages of change: Precontemplation –
Contemplation – Preparation –Action –
Maintenance ?
(per Prochaska & DiClemente)
67
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
Do nothing, things will get better.
Change something(s) about my practice, job,
career while maintaining my integrity and
considering the best interest of my clients,
patients, employees, and students.
 Innovate?
 Reinvent?
 Retire?
68
 Branded Therapies
 Executive Coaching (Life Coaching)
 Forensic Practice
 Child and Geriatric Services
 Trauma Therapy
 Remote Service Delivery (telemetry)
 Rx Privileges
69
In most instances branded therapies do not have
trademark protection and use of the term
“therapist” does not require a professional license.
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71
Use of the term “coach” remains largely
unregulated by governmental authorities and the
mental health professions.72
Life-coaches all the
rage
By Karen S. Peterson,
USA TODAY
Personal growth is
hot. Diagnosis is not.
That is one reason
America has seen a
boom in the number
of people offering
their services as "life
coaches."
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http://www.ibrt.org/
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Ranae N. Johnson is the mother of 7 children and 22
grandchildren and 4 great grandchildren.
 Education:
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American Pacific University; Honolulu, Hawaii
Ph.D. (Doctor of Philosophy/Psychology); June 1996
American Institute of Hypnotherapy
Doctor of Clinical Hypnotherapy; April 1994
Institute of EMDR; Pacific Grove, California
Eye Movement Desensitization and Reprocessing Certificate; March
1991
 Long Beach State, Long Beach, California; 1959-1962
 Brigham Young University, Provo, Utah; 1957-1959
 Western Business College, Salt Lake City, Utah; 1956

Certifications


National Guild of Hypnotists (Certified Hypnotherapy 1996)
Master Neuro-Linguistic Programming (NLP) Technician (July 1990)
Page 76
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A natural, safe way to release stress and trauma.
Rapid Eye Technology (RET) is among the many new forms of energy
medicine emerging into the mainstream to facilitate rapid healing.
Learn how to release stressful emotional, mental and physical patterns
using:
Blinking
Eye movements
Breathing
Stress reduction energy work

At the heart of Rapid Eye Technology is the sense of the sacred – an
awareness that each person is in essence a perfect spiritual being.

Rapid Eye Institute
http://www.rapideyetechnology.com/index.htm
Page 77
http://www.rapideyetechnology.com/selfcare.htm
Page 78
RET Quick Release
Here is a simple yet effective quick stress relief process you can do for yourself to get a sense for
Rapid Eye Technology. Just follow the simple directions here. Please keep in mind this is a SIMPLE
demo without a trained RET technician. Doing a session with a RET technician is the only real way to
determine if RET will work for you.
1. Identify something that is stressing you. Keep it simple - maybe something recent. For
more stressful material, or to do more than this simple process, click here to seek a
technician in your area to work with.
2. While thinking about what is stressing you, gauge how much you feel it on a scale of
0-10 with 0 meaning not at all and 10 meaning totally stressed out.
3. Cast your eyes back and forth in a zigzag pattern while moving the zigzag up and
down, as in the illustration. Do this until you feel like you can't do it anymore or like you
really want to blink.
4. Blink hard 3-4 times
5. Take three deep breaths, letting each out all at once in a sigh.
6. Gauge again how you feel on the same 0-10 scale and notice the difference in the
way you feel.
7. Repeat the process to de-stress more or to process another issue.
To deal with more stressful material we suggest you contact a RET technician in
your area. Click here to find a RET in your area.
This demonstration process is intended for simple stress and is not intended to replace
competent medical or psychological assistance. If you are dealing with physical
problems or an emergency, seek qualified medical attention.
Page 79
How can I do it in an
ethically responsible
manner?
Trauma Therapy &
Coaching as examples
80
How do I become an
executive/organizational/personal coach
or trauma expert?
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

Ask an expert colleague.
Get additional education and training if
necessary.
Focus on evidence based practices where
they exist.
Stay mindful of biases
 (e.g., “I can do it because I’ve been through it!)

Remember: you can’t hide behind a new
identity, if you cite your profession.
82

Ino Itall, Ph.D. has a degree in counseling
psychology and a license to practice in NE. A
university dean hires Dr. Itall to consult on the
political science department at a university in
SC where faculty are feuding, because his
experience as a psychologist in academic
settings. Dr. Itall comes to SC and interviews
many people on campus with a pledge of
confidentiality and intent to coach the faculty
on improving relationships.
83

Itall then offers coaching advice that
breaches the confidentiality of others. When
challenged ethically, Dr. Itall responds: “I
wasn’t functioning as a psychologist when I
did the report. I was acting as an
organizational coach and the ethics code did
not apply.”
84
 “We” have a strong commitment to
reach out to children – consider this:
 Tragically, 65% of our children have
experienced trauma and abuse. *
 35% of our adults have experienced
trauma in their lives.*
▪ “*These numbers only represent cases that have
been reported.”
▪ (Actual data per ACF and Census Bureau =
1.2%)
85
“National Statistics:”

"... 30 to 46 percent of all children are sexually
violated in some way before they reach the age
of 18." Levine, P., & Kline, M., (2007). Preventing
and Healing the Sacred Wounds of Sexual
Molestation. The Meadows Cutting Edge, Spring,
pg. 5.

The Meadows Cutting Edge a non peer reviewed
newsletter cited the authors’ book, published by
North Atlantic Books.
86

Company Profile
 Founded in 1974, North Atlantic Books has been
located in Berkeley, California since 1977. North
Atlantic publishes on alternative health, astrology,
dance, martial arts, and spiritual titles...
 Our mission is to affect planetary consciousness,
nurture spiritual and ecological disciplines,
disseminate ancient wisdom, and put forth ways
to transmute cultural dissonance and violence
into service…
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 Raising fees
 Extending credit
 Sliding fee scales
 “Waiving” co-payments
 Billing and collections
 Bartering
89

Inform clients about fees, billing and
collection practices routinely at the start
of a professional relationship.

Repeat this information later if necessary.

Follow the procedures you specified.
90


Take care to explain the nature of services
offered, the fees to be charged, the mode of
payment to be used, and other financial
arrangements that might reasonably
influence the potential client’s decisions.
Many practitioners find it useful to put such
information in a pamphlet or hand-out for
clients with other basic information, such as
confidentiality and emergency coverage
notices.
91

Never contract for services without first
explaining the costs to the client and mutually
determining that the costs are affordable.

Do not mislead the client into thinking that
insurance or other third-party coverage will
bear the full cost of services when it seems
reasonably clear that benefits may expire
before the need for service ends.
92
When treatment is in progress and a client
becomes unemployed or otherwise can no longer
pay, try to be especially sensitive to the client’s
needs.
 If you cannot realistically help a client under
existing reimbursement restrictions, and the
resulting process might be too disruptive, it may
prove best to simply explain the problem and not
take on the prospective client.
 At times it may become necessary to terminate
care or transfer the client elsewhere over the long
term, but avoid doing this abruptly or in the midst
of a crisis period in the client’s life.

93

3.12 Interruption of Psychological Services
 Unless otherwise covered by contract, psychologists make
reasonable efforts to plan for facilitating services in the event
that psychological services are interrupted by factors such as
the psychologist's illness, death, unavailability, relocation, or
retirement or by the client’s/patient’s relocation or financial
limitations.

10.10 Terminating Therapy
 (c) Except where precluded by the actions of clients/patients
or third-party payors, prior to termination psychologists
provide pretermination counseling and suggest alternative
service providers as appropriate.
94

Increasing fees in
the course of service
delivery poses
dilemmas.
 If a commitment is
made to provide
consultation or
conduct an
assessment for a set
fee, it should be
honored.
95
 Likewise, a client who enters psychotherapy at an
agreed-upon rate has a reasonable expectation
that the charges will not be raised excessively.
 Once service has begun, the provider has an
obligation to the client that must be considered.
Aside from financial hardship issues, the
psychologist may have acquired special influence
with the client that should makes it difficult for
the person to object.
96

Some practitioners require clients to pay
certain fees in advance of rendering
services as a kind of retainer (e.g., in
forensic cases or other complex
assessments).

This is an unusual practice in psychology,
but not unethical so long as the
contingencies are mutually agreed upon.
97
The most common use of such advance
payments involves relationships in
which the practitioner is asked to hold
time available on short notice for some
reasons (as in certain types of corporate
consulting) or when certain types of
litigation are involved.
 Such situations require careful
accounting.

98
 Four basic elements:
 First, a false representation is made by
one party, who either knows it to be
false or is knowingly ignorant of its
truth. This may be done by
misrepresentation, deception,
concealment, or simply nondisclosure
of some key fact.
Page 99
 Second, the misrepresenter's
intent is that another will rely on
the false representation.
 Third, the recipient of the
information is unaware of the
intended deception
Page
100
 Fourth, the recipient of the
information is justified in relying on
or expecting the truth from the
communicator. The resulting injury
may be financial, physical, or
emotional.
101
If you plan to use this policy in your
practice, give proper advance
information about this practice to clients
and obtain their consent.
 Never bill an third-party payer for
unkept appointments.

102
 The key to navigating these ethically
 Know and honor your contractual
obligations, while
 informing clients and
 protecting their rights.
103
104

The “moral hazards” of insurance
 Ex ante – people don’t buy it unless they
expect to use it.
 Ex post – people with insurance demand
more and better service commensurate with
coverage.

Solutions
 Co-insurance: deductibles and co-payments
105






Disguising services not covered
“Upcoding” diagnoses
Musical chairs in family therapy
Billing for services not rendered
Burying the deductible
Waiving the co-payment
106
107

State and Federal laws define debtor creditor
relationships, including:
 Collection practices
 Actions of a creditor’s agents
 Credit policies (e.g., interest and surcharges)

Include any such plans in the client contract or
consent notifications.
108
 HIPAA compliance essential
 Have business associate agreements
 Do not withhold medical records for
non-payment of fees.
109



Collection agencies – you retain
responsibility
Small claims court – acceptable, but risky
Best bets
 Discuss all with client in advance and ongoing.
 Do not allow significant debt accumulation.
 Consider retainer in some types of practices.
110

Bartering is an ethically permissible, but
complicated multiple role situation.
 Establishing the value of the products/services
poses challenges.
 Bartered products/services are taxable and legally
reportable.
 Multiple role hazards abound.
▪ Clinical contraindications
▪ Dissatisfaction with products/services
▪ Feelings of exploitation
112
Reply to: [email protected]
Date: 2008-12-07, 12:09PM EST
My husband is a capable and (sic) effecive counselor,
licensed...but he is not good at home repairs/construction. I
will trade his expertise for your time with him as a counselor
if you can help us with tub and tile repair and plumbing. We
had a termite problem that we fixed but the place needs a
new floor and other stuff...if you are struggling with
depression or bipolar, he is your man...maybe your spouse,
child, etc. He is truly an excellent counselor. We have our
own non-profit and give to others without charging so our
financial situation is limited, but looking to trade! thanks.
Location: NE Grand Rapids
PostingID: 948491022
113

Exchanging anything other than money for therapeutic
services was long frowned upon under the APA ethics code.
However, APA has nearly reversed itself in recent years. The
current code leaves only an admonition regarding clinical
contraindications and potential for exploitation before
entering into a barter agreement with a client (APA 02: 6.05).

On the surface, allowing bartering in hard economic times
looks like a win-win situation for clients who want therapy
and therapists who want clients. We acknowledge that
entering into bartering agreements with clients appears to
be a reasonable and even a humanitarian practice towards
those who require mental health services but are uninsured
and strapped for money.
Page
114

Many bartering arrangements have proved highly
satisfactory to both parties.
 A marriage and family therapist in a small farming community agreed
to take fresh produce as payment for three sessions with a couple who
needed professional advice regarding their management of an elderly
parent.
 A counselor in a small town agreed to see a proud but poverty-stricken
client who was mourning the loss of his spouse in return for the client's
carpentry work on a charitable home restoration project organized by
a group that the counselor actively supported.
 psychologist performed a child assessment in exchange for five small
trees from the parent-owner of a struggling nursery service.
Page
115



A rarely discussed and serious bartering complication is that
most professional liability insurance policies specifically
exclude coverage involving business relationships with
clients.
Liability insurance carriers may interpret bartering
arrangements as business relationships and decline to
defend covered therapists when bartering schemes go awry.
To obscure matters even further, the fair market monetary
value of bartered goods or services must be reported as
income on the recipient’s income tax returns. Failure to do so
constitutes tax evasion.
Page
116

To fully meet legal requirements (and thereby
behave in a fully honest and ethical manner)
requires detailed documentation, creating
another type of interaction with the client. The
therapist who declared that there was nothing
illegal about doing therapy for free and nothing
illegal about that client agreeing to work in the
therapist’s dress shop for free has set up both for
charges of income tax fraud and, for the
therapist, labor law violations.
Page 117

Kurt Court, Esq., and Leonard Dump, Ph.D., met at a mutual
friend's party. Mr. Court's law practice was suffering because of
what he described as mild depression. Dr. Dump was about to
embark on what promised to be a bitter divorce. They hit on the
idea of swapping professional services. Dr. Dump would see
Mr. Court as a psychotherapy client, and Mr. Court would
represent Dr. Dump in his divorce. Mr. Court proved to be far
more depressed than Dr. Dump anticipated. Furthermore,
Court's representation of Dump was erratic, and the likelihood
of a favorable outcome looked bleak. Yet, it was Mr. Court who
brought ethics charges against Dr. Dump. Court charged that
the therapy he received was inferior and that Dump spent most
of the time blaming him for not getting better faster.
Page
118

Flip Channel, Ph.D., allowed Penny Pinched to pay her past
due therapy bill with a television set that Penny described as
near new. However, when Dr. Channel set it up in his home,
the colors were faded, and the picture flickered. He told Penny
that the television was not as she represented it, and that she
would have to take it back and figure some other method of
payment. Penny angrily retorted that Dr. Channel must have
broken it, because it was fine when she brought it to him. When
Channel insisted that the TV was defective, Penny terminated
therapy and filed ethics charges against him. She charged that
he broke both a valid contractual agreement and her television
set.
Page
119

Weight-reduction specialist, Stella Stern, PhD, agreed, after
many requests, to work on a professional basis with her good
friend Zoftig Bluto. Progress was slow, and most of Bluto's
weight returned shortly after losing it. Dr. Stern became
impatient because Bluto did not seem to take the program
seriously. Bluto became annoyed with Dr. Stern's irritation, as
well and lack of progress. Bluto expressed disappointment in Dr.
Stern, whom she believed would help her lose weight quickly
and effortlessly.

An intellectual assessment of 9-year-old Billy was recommended
by the boy's school. Billy's father, Paul Proud, asked his brother,
Peter Proud, Ph.D., to do it. The results revealed some
low-performance areas and an FSIQ of 93. Paul became upset
with his psychologist-brother for “not making the boy look good
to the school.”
Page
120

Felina Breed, Ph.D., also raised pedigree cats. Many of her
therapy clients were the “cat people” she met at shows. The
small talk before and after treatment sessions was usually
about cats. Clients also occasionally expressed interest in
purchasing kittens from Dr. Breed. She agreed to sell them to
her clients, which eventually came back to haunt her. When
the therapy process was not proceeding as one client wished, a
client accused Dr. Breed of using him as a way to sell
high-priced kittens. Another client became upset because Dr.
Breed sold her a cat that never won a single prize. This client
assumed that if the therapist raised “loser cats,” the
trustworthiness of her therapy skills should be questioned as
well.
Page
121

Raphael Baroque, professional artist, complained to an ethics
committee that Janis Face, Ph.D., did not follow through with
her promises. Baroque had been Dr. Face's client for more than
a year, during which time she praised his art work,
accompanied him to art shows, and promised to introduce him
to her gallery contacts. Baroque began to feel so self-assured
that he terminated therapy, fully expecting that their mutual
interest in his career would continue. However, Dr. Face did not
return his calls. Baroque became frantic. When contacted by an
ethics committee, Dr. Face explained that she always
unconditionally supported her clients. But, because Baroque
was no longer a client, she had no further obligations to him.
Page
122
123
 Considerations in closing a practice
 Client notifications and records
 Wind-down payables and receivables
 Partners, staff, referral sources
 Covering your tail (professional liability
insurance protection)
 Self care
124



Notify and refer clients as needed.
Make arrangements for clinical records
management that comply with state and
federal laws.
Make arrangements for business records that
comply with state and federal laws.
125
Erin Mendez & Sean Leidigh , WGNTV NEWS, May 30, 2009 , CHICAGO
Years of Chicago Public School student's confidential, sealed records somehow
made their way to a Lakeview alley dumpster, totally filled with special education
records, clearly labeled by name and containing highly personal information;
photographs, home addresses, parents information, results of psychological
tests. Also buried among the paperwork were social security numbers, SAT
scores and a slew of taped envelopes, with the words "to be opened only by the
psychologist.“
There was a common thread on the students records. A signature from Lakeview
High School's now retired case director of ten years, who had this to say about
the dumped files, "Those records are highly confidential and as far as I'm aware,
should be kept sealed indefinitely.”
wgntv.com /wgntv-cps-documents-found-in-alley-may30,0,195726.story
126

What does the practice include?
 Furniture, an office, psychological test
equipment, the name and good will of the
practice or clinic, a group of clients making
use of the practice?
 One can sell the furniture, real estate, and
equipment. But, selling the clients, their
files, and access to this information raises
significant ethical issues.
127
 Practitioners cannot ethically transfer clinical
responsibility for clients or confidential client records
in a private practice without the clients' consent, but
can work to allow clients continuity of care freedom
of choice, and safe records management.
 One can delegate fiscal management of residual
payables and receivables, but the psychologist may
retain vicarious responsibilities for the misdeeds of
others
 See: works by Woody and Walfish & Barnett
128
 One solution - - -
 Phasing out retirement or relocation
to the buyer in close collaboration
129

Trailing claims in professional liability coverage
– covering your “tail”
 The “tail” = an Extended Reporting Period (ERP).
 Occurrence vs claims made policies
 With APAIT: the tail is free if you retire, become disabled
or die while insured with a claims-made policy. Check
your policy if insured elsewhere.
▪ Notify the carrier within 60 days of the termination of your
policy to issue the free retirement tail.
▪ Plan to have someone notify the carrier within a year in the
event of your death or disability.
130
 Stay mindful of your own feelings
(eagerness, sadness, ambivalence,
burnout) and focus on the duty
owed to current and former clients.
131
132

If you've been out of practice for a few years, you
might have to:
 get yourself re-licensed, get caught up on all the
continuing education you missed, and perhaps join a
formal re-entry program.
 contend with your own employability and demands
for you to know new information technology.
 deal with a potential employer’s interest in a
guaranteed long-term relationship.
 prior acts liability insurance (nose-coverage)
133