AVOIDING LIABILITY BLOG

Treatment Outside Of Office And Home

November 2009

… I wrote about home visits and some of the legal issues that might arise when performing such services in the September 2009 issue of the Avoiding Liability Bulletin. A reader asked that I write about rendering treatment in places other than in the practitioner’s office or the client’s home – such as, rendering treatment in a public place. One example given by the reader was the situation where a practitioner helps a patient or client suffering from a phobia to ride an elevator or to engage in some other kind of joint activity. While this kind of activity is in my view somewhat common and well accepted, there are issues that need to be considered by practitioners when working away from home or office.

The examples of such treatment away from office or home are limitless. I remember a case where the licensing board was debating whether or not to allow hours of experience gained by an intern while doing therapy with children on horseback. Consider the situation where a therapist performs therapy in a van, with advertisements on the van, about his or her mobile therapy service. Many are familiar with other kinds or styles of therapy or counseling that involve some form of outdoor physical activity or presence. I am also aware of a case where a therapist took a cruise, as well as engaged in other activities, with a patient, claiming that this was all a necessary part of the therapy, but later faced disciplinary action by the licensing board. Each case is different, and the laws or regulations of a particular state may have relevance.

I start with a few basic principles when thinking about this subject. First, I ask if there is a law or regulation that prohibits the particular conduct or manner of practice in question. I often state that the practice of psychotherapy is both an art and a science, and I believe that innovation and individuality should be encouraged and embraced. If there is no such prohibition for a particular activity, then the next question I usually ask is whether or not there are any ethical code provisions that impact such practice – either favorably or unfavorably. I want to know if there is acceptance of the practice in the clinical literature, or whether the practice engaged in is new and/or experimental. If new and/or experimental, then I am interested in seeing whether or not the practitioner uses a written and signed informed consent form, and particularly interested in the content of such a form.

Anytime one practices in a public place, issues of privacy and confidentiality are necessarily involved. The practitioner must take care to prepare the patient for this reality and discuss how and when communications are to take place. With respect to the mobile therapy service mentioned above, for example, members of the public may learn of the fact of a therapist-patient relationship if they see someone getting in or out of the van. Of course, the same thing happens when patients go to a busy counselor or therapist’s office. Issues around confidentiality might best be addressed in the practitioner’s disclosure statement, given to the client at the outset of treatment. Possible compromises of the client’s confidentiality can be managed better when addressed in advance. Additionally, issues surrounding fee must be addressed, preferably in the disclosure statement. How will the practitioner bill the patient? Is travel to and from the building where the elevator is located (or shopping at a grocery store etc.) going to be billed at the usual and customary rate? What if the activity takes more than the usual length of time for a therapy session?

With respect to taking a cruise with a patient, ponder this! Since the therapist or counselor would presumably be doing this for the benefit of the patient’s treatment (if not, one should readily see the problems for the practitioner), not only might the patient be expected to pay for the practitioner’s cruise, but as well, the practitioner will have to decide how much to charge the patient each day of the cruise. I trust that I need not go any further with this particular example. The problems and dilemmas are self- evident. Accompanying a phobic patient or client to a grocery store or riding in an elevator with a patient is typically not problematic for the practitioner, assuming that the practitioner’s judgment is clinically sound. Consultation with other clinicians, if necessary, can be very helpful if the practitioner’s conduct is later in question.

If insurance is billed, it is best to include the appropriate procedure code number that indicates that services were not provided in the office or a home, or that otherwise informs the insurance company of the facts about where services were rendered or the nature of the services. A written explanation to the insurer, showing how this was a necessary part of the treatment, would hopefully be helpful when seeking reimbursement and should certainly avert a claim by the insurer around the issue of fraudulent billing (were there to be no disclosure by the practitioner). And finally, as I recall, the hours of experience gained by the intern while on horseback and while working with children also on horseback were ultimately allowed by the licensing board. It took a bit (pun intended) of explaining!

ABOUT THE AUTHOR

Richard Leslie: Avoiding Liability Bulletin

"At the Intersection of Law and Psychotherapy" Richard S. Leslie is an attorney who has practiced at the intersection of law and psychotherapy for the past twenty-five years. Most recently, he was a consultant to the American Association for Marriage and Family Therapy (AAMFT), where he worked with their various state divisions to develop and implement their legislative agendas. He also provided telephone consultation services to AAMFT members regarding legal and ethical issues confronting practitioners of diverse licensure nationwide. Additionally, he wrote articles regarding legal and ethical issues for their Family Therapy Magazine and presented at workshops on a variety of legal issues. Prior to his work with AAMFT, Richard was Legal Counsel to the California Association of Marriage and Family Therapists (CAMFT) for approximately twenty-two years. He was director of Government Relations for CAMFT, and as such was the architect of CAMFT’s widely regarded and successful legislative agenda. He represented CAMFT before the regulatory board (the Board of Behavioral Sciences) and was a tireless advocate for due process and fairness for licensees and applicants. He was a regular presenter at workshops and was consistently evaluated as CAMFT’s most highly rated presenter. He also sat with the CAMFT Ethics Committee and acted as their advisor on matters pertaining to the enforcement of ethical standards. Richard is an acknowledged expert on matters pertaining to the interrelationship between law and the practice of marriage and family therapy and psychotherapy. For many years, he taught Law and Ethics courses for a number of colleges and universities in their marriage and family therapy degree programs. While at CAMFT, he provided telephone consultation services with thousands of therapists in California and elsewhere for over twenty years. He is highly regarded for his judgment, his expertise, his direct style, and his clarity. Richard has been the driving force for many of the changes and additions to the laws of the State of California that affect MFTs. In 1980, he was primarily responsible for achieving passage of the "Freedom of Choice Law" that required insurance companies to pay for psychotherapy services performed by MFTs. Passage of that law allowed MFTs to earn a living, allowed them to better compete in the marketplace, and strengthened the profession in California by leading to a great increase in the number of licensees and CAMFT membership. Currently, about half of the licensed marriage and family therapists in the country are licensed in California. While at CAMFT, Richard was primarily responsible for, among other things, the successful effort to criminalize sex between a patient and a therapist. He was successful in extending the laws of psychotherapist-patient privilege to MFTs, thereby giving patients the same level of privacy protection as when seeing a psychiatrist or psychologist. He fought tirelessly and successfully for the right of MFTs to refer to themselves as "psychotherapists," to perform psychological testing services, to be appropriately reimbursed by California’s Victims of Crime Program, and to be employed in county mental health agencies throughout California. Richard was admitted to the Bar in New York (1969) and in California (1973). While practicing in New York, he served as a public defender, and later, as an Assistant District Attorney. Shortly after moving to California, he worked for the San Diego County Human Relations Commission as their Law and Justice Officer. While there, he worked successfully to achieve greater racial diversity in the criminal jury selection system and to expose and stop police abuse. For such work with that agency, he was the recipient of the Civil Libertarian of the Year Award by the San Diego Chapter of the American Civil Liberties Union.

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