Avoiding Liability Bulletin – April 2014
NOTE: In the February 2014 issue of the Avoiding Liability Bulletin, I raised many questions for the reader’s thought, research, and discussion with colleagues. The questions were on a variety of topics, arranged alphabetically. Some of those questions, with my answers, follow. The answers are brief and are not intended to be a thorough exploration of the topic. (In the March 2014 issue of the Avoiding Liability Bulletin, I answered questions raised on the topics of barter, neglect, violence toward patient, and taking a zoo trip with patient.)
Under what circumstances is it appropriate to raise a patient’s fee during the course of therapy? Does raising one’s fee during the course of therapy raise the issue of exploitation? Is there a limit to the size of the increase? Is a twenty-five percent increase ethically permissible?
DISCUSSION: While there may be a law or regulation somewhere that addresses this issue, I am not aware of any that directly addresses the raising of a patient’s fee during the course of therapy. In short, I would argue that raising one’s fee during the course of therapy does raise the issue of exploitation. A therapist or counselor might seek to raise his or her fee for a variety of reasons. Some argue that raising the fee of an existing patient should be viewed as exploitation because the patient or client came in with an understanding of the fee, and then, just when the patient became reliant upon the practitioner, the practitioner raised the fee. Patients may justifiably feel exploited – especially if not informed of the possibility of raises, or the limitations (e.g., as to frequency or percentage) to raises, in the disclosures made to patients before the commencement of treatment.
Codes of ethics of professional associations may not address the issue directly, or at all, because of their sensitivities to antitrust concerns. Those that address the issue are likely to require disclosure to the patient concerning the possibility of future increases and/or prior reasonable notice of an increase. Generally, laws, regulations, or codes of ethics will require that the practitioner disclose, prior to the commencement of treatment, the fee to be charged for the services to be rendered or the basis upon which the fee will be computed or determined. If a practitioner wants to reserve the right to raise fees during the course of therapy, assuming there is no statutory or ethical prohibition against such action, that fact should be disclosed to the patient, in writing, prior to the commencement of treatment. Other information might also be considered for inclusion, such as the frequency or number of raises possible, the percentage of any possible increase, and the amount of prior notice to be given of a proposed increase.
Because of the potential for allegations of exploitation, and in order to avoid the drafting of a complex disclosure statement regarding this issue, it might be easiest and safest to raise fees for new patients and to continue to see existing patients at the fee that is established at the out of their treatment. Of course, the practitioner is free to implement policies around fees as he or she deems appropriate – provided that no law, regulation, or ethical code provision is violated. With respect to the twenty-five percent increase question, practitioners should carefully consider whether such an increase could be considered to constitute exploitation under the circumstances, or whether it would be considered as reasonable and fair by the patient, by an ethics committee, or by the state licensing board.
ABOUT THE AUTHOR
"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.