Ethics and Professionalism in Contemporary Physical Therapy Practice

Ethics and Professionalism in Contemporary Physical Therapy

PracticeStuart Katzman, PT, DPT

Steve Simas, Esq.

www.ccapta.org www.movecalifornia.org

Learning Objectives

At the end of this program, the learner will be able to:

Understand the APTA Code of Ethics Principles Be able to identify where/if potential conflicts of interests

exist in various practice settings and arrangements Know the top eight reasons PT’s lose their licenses Understand the process for remediating ethical

complaints Be abele to utilize the APTA Code of Ethics and Core

Values to establish a foundation for ethical behavior

Ethics: Definition

Ethic: - Rules of behavior based on ideas about what is morally

good or bad *Meriam-Webster

- Moral principles that govern a person’s or group’s behavior *Oxford Dictionary

Moral: Definition

Moral: - Concerned with the principles of right and wrong

behavior and the goodness or badness of human character

*Oxford Dictionary

Morality

So - who decides what is right or wrong?Philosophers have debated this since the age of time. For the Profession of Physical Therapy in the United States, it is the American Physical Therapy Association (APTA)

Ethical Behavior: nobody said it was easy

Ethical Dilemmas:

What would you do?

A Doctor’s Dilemma

Robbin’s Dilemma

PT Practice - Guided By:

The Law – State Practice Act (Section 2600 of the Business and Profession code) The Physical Therapy Board of California (PTBC) is

one of 40 licensing boards governed by the Business and Professions (B&P) Code

And – just in case they left anyone off the list…

Regulation – all the details pertaining to the law


APTA Code of Ethics Code of Ethics for the Physical TherapistCode of Conduct for the Physical Therapist Assistant

APTA Guide for Professional Conduct – helps interpret the COE’s


APTA’s Core Values:Accountability AltruismCompassionExcellenceIntegrityProfessional DutySocial Responsibility

APTA Code of Ethics

Principle 1 – Respect the dignity and rights of othersPrinciple 2 – Compassionate and trustworthyPrinciple 3 – Accountable in making prof. judgementsPrinciple 4 – Integrity in professional relationshipsPrinciple 5 – Fulfill legal and professional obligationsPrinciple 6 – Commitment to lifelong learningPrinciple 7 – Promote behaviors which benefit societyPrinciple 8 – Help meet the health needs of society

It Won’t Happen to Me!

Just how often are PT’s brought up on ethics violations?

In2014, The PTBC issued: - 123 Citations- 50 Disciplinary Actions

It Won’t Happen to Me! How difficult is it to file charges against a PT?

* Not Very!* Simple file a complaint with the Dept of

Consumer Affairs “Consumer Protection Services Program” of File a complaint

directly with the PTBC*All complaints are investigated – even frivolous

ones!

ww.ptbc.ca.gov

http://www.ptbc.ca.gov/

Types of Licensing Board Violations

Citations

Disciplinary Actions

CitationsIf an administrative fine is included in the citation, the fine for a violation shall not be less than $100 and shall not exceed $2,500. A citation may include an administrative fine of up to $5,000 if the board determines that at least one of the following circumstances applies:

(1) The citation involves a violation that presents an immediate threat to the health and safety of another person.(2) The citation involves multiple violations of the Physical Therapy Practice Act or these regulations that demonstrate a wilful disregard of the law.(3) The citation involves a violation or violations perpetrated against a senior citizen or disabled person.(4) The cited person has a history of two or more prior citations of the same or similar violations.

The Top 8 Disciplinary Actions:

Unprofessional Conduct (patient neglect/safety) Unprofessional Conduct (sexual misconduct) Lack of supervision of assistive personnel Lack of documentation Unprofessional conduct (illegal practice of

medicine/diagnosis of disease) Unprofessional conduct (illegal practice of

acupuncture/dry needling) Unprofessional conduct (failure to document wellness

services) Unprofessional conduct (DUI)

Disciplinary Action Resolution

Decision - The order issued by the Board in a disciplinary action Stipulated Decision - A Settlement agreed to by the parties in lieu of a formal hearing to

resolve the accusation and impose discipline. Default Decision - Licensee fails to respond to an Accusation by filing a Notice of Defense

or fails to appear at administrative hearing. Public Reproval - A formal reprimand issued by the Board. Revoked - The right to practice is ended. Revoked, Stayed, Probation - "Stayed" means the revocation is postponed, put off.

Professional practice may continue so long as the licensee complies with specific probationary terms and conditions. Violation of probation may result in the revocation that was postponed.

Surrender of License - The licensee turns in the license, subject to acceptance by the board. The right to practice is ended.

Suspension - The licensee is prohibited from practicing for a specific period.

www.PTBC.ca.gov

Actual Decisions1. Accusation Filed 02/28/14. Violation of B & P Codes: 490 Conviction of a Crime, 2239 Self-

Use of Drugs or Alcohol, 2239(a) Unlawful Use or Prescribing, 2660 Unprofessional Conduct, 2660(a) Use of Alcohol in a Dangerous Manner, 2660(e) Conviction of a Crime Substantially Related to the Practice, 2661 Conviction of a Crime. Violation of CCR: 1399.20 Criminal Substantial Relation, 1399.24 Unprofessional Conduct. Default. Decision and Order Effective 08/18/14, license revoked.

2. Accusation Filed 10/14/13. Violation of B & P Codes: 2261 Making False Representations in a Medical Record, 2262 Alteration of Medical Records, 2266 Failure to Maintain Accurate Records, 2660 Unprofessional Conduct, 2660(i) Aiding and Abetting, 2660(j) Aiding/Abetting Unlicensed Activity, 2660(k) Commit Fraud/Dishonest Act. Violation of CCR: 1399.85 Failing to Maintain Accurate Records. Stipulated Settlement and Disciplinary Order. Effective 09/29/14, revocation stayed, 3 year probation.

3. Accusation Filed 09/03/13. Violation of B & P Codes: 2234(c) Repeated Negligent Acts, 2620.7 Failure to Properly Document Treatment, 2660(g) Gross Negligence, 2660(h) Violating the Code. Violation of CCR: 1398.13 Failure to Properly Document Treatment. Stipulated Settlement and Disciplinary Order Effective 09/29/14, revocation stayed, 3 year probation.

Avoidable Conflicts of Interest


Referral for Profit scenariosWho do you work for?How is the business structured?How are your services being billed?Who decides how long to continue care?


Is it all about money?

Absolutely not!

But quite often it is

Our Old Friend: “Referral for Profit”What every therapist should know


Referral for Profit (RFP) Definition

“Referral for profit” in physical therapy describes a financial relationship between a physical therapist and a physician in which a physician (medical doctor, doctor of osteopathy, podiatrist, dentist or chiropractor) refers a patient for physical therapy and derives a financial benefit from the physical therapy services provided to the person who is referred.”

Avoidable Conflicts of Interest—Referral for Profit Physician Ownership & Referral Act of 1993 (“PORA”) –Business and Professions Code Sections 650.01It bans physicians, chiropractors, optometrists, and some psychologists from referring patients for specified healthcare goods and services, including physical therapy, in which the licensee or licensee’s immediate family has a financial interest. Thus, under PORA, a physician generally cannot refer a patient from his or her practice to a physical therapy practice in which the doctor has a financial interest.

Avoidable Conflicts of Interest—Referral for Profit PORA Exceptions are many (B & P Code sec. 650.02)Physicians in Rural Areas – Where there is no alternative provider within 25 miles or 40 minutes travel time.University Faculty Health Facilities, Hospitals and Emergency Services Non-profit Corporations Knox-Keene (HMO) Enrollees Multi-Specilaity Clinics (and more)

Avoidable Conflicts of Interest—Referral for Profit

Labor Code sec. 139.3 –similar prohibitions in workers compensationFederal Law:Stark Law - 42 USC sec. 1395nn Anti-Kickback Statute – 42 US Sec. 1320

Avoidable Conflicts of Interest One form of Referral for Profit has long been known as

POPTS; Physician-Owned Physical Therapy Services – Legal since AB 1000 in 2014

Financial relationship exists between a physical therapist and a referring practitioner – perhaps each owns a piece of the other’s prof. corp – Legal since AB 1000 in 2014

MD/DO, DDS, DPM, DC or PT refers a patient for PT treatment and receives financial gain, in the form of a “kickback” – Illegal

A PT rents space from a referral source and the rent/lease fee is dependent upon the volume of patients referred – (in most cases) Illegal


RFP: Discussion Points What would CONSTITUTE a quality Non-PT-Owned PT

practice?

If all things were equal, why would a PT choose to work in a clinic owned by anyone other than a PT?

Why do you think a Non-PT-Owned clinic would be able to pay significantly higher salaries to a PT than a PT owned practice?

Why doesn’t APTA just prohibit PTs from working in self referral arrangements?


APTA Resources on RFP APTA “White Paper” on Referral for Profit APTA Resource Manual on Referral for Profit APTA POPTS Survival Guide POPTS “Take Action Packet” “Referral for Profit & Physical Therapy” legislator

brochure APTA website apta.org or call (800) 999-2782


Who Do You Work For? Corporate Employment in Healthcare

Moscone-Knox Professional Corporation Act (Corporations Code 13401.5)

Health professional corporations listed in the Moscone-Knox Act may employ other professionals included in the Business and Professions Code (B&P Code), including physical therapists.

Physical therapy corporations may equally employ other health professionals and of which a majority of the shares must be owned by physical therapists.


If a physical therapist is employed by, or employs, a referral source, an inherent conflict of interest may exist:

Physician/Therapist judgment regarding need for physical therapy may be compromised.

Physician/Therapist judgment regarding the need for continuing care may be compromised.

Physical therapist may face pressure to manage all patients referred by a particular physician.

Best interests of client may be compromised

Professional Corps Disclosure Requirements

Section 2406.5 Business and Professions Code When a physician or surgeon, podiatrist, or other referring

practitioner refers a patient to receive services by a physical therapist employed by a professional corporation as defined in Section 13401 of the Corporations Code, the referring practitioner shall provide notice of the following to the patient, orally and in writing, in at least 14-point type and signed by the patient:That the patient may seek physical therapy treatment services

from a physical therapy provider of his or her choice who may not necessarily be employed by the medical or podiatry corporation.

If the patient chooses to be treated by an employed physical therapist, any financial interest the referring practitioner has in the corporation.

Disclosure Rules: If Only So Transparent

Ethics Which Rule Conflicts of Interest

Who makes “plan of care” decisions for your patients?

Principle #3 – PT will be accountable for making sound professional judgments

3A – PT will demonstrate independent and objective professional judgment

3D – PT will not engage in conflicts of interest that interfere with professional judgment


Principle #7 – PT shall promote organizational behaviors and business practices that benefit patients/clients and society

7A – PT shall promote practice environments that support autonomous and accountable professional judgments

7F – PT shall refrain from employment arrangements, or other arrangements, that prevent PTs from fulfilling professional obligations to patients/clients


Physicians also have Ethical Standards to adhere to:

“Under no circumstances may physicians place their own financial interests above the welfare of their patients” -From the American Medical Association Code of Ethics

Over Utilization’s Poison to the Profession

The Trickle-Down Effect:

Over-utilization leads to diminished value of service by payers

Which may lead to lower payment for PT services

Which may adversely affects PT salaries and practice revenue

Which may reduce PT work force demand


Being held accountable for the behavior of other’s

Principle #4 - :Physical therapists shall demonstrate integrity in their relationships with patients/clients, families, colleagues, students, research participants, other health care providers, employers, payers, and the public.

4C. Physical therapists shall discourage misconduct by health care professionals and report illegal or unethical acts to the relevant authority, when appropriate.


How are your services being billed?

Are they coded to accurately reflect the interventions provided?

Are the charges within the realm of usual and customary?

Are the patient’s estimated “out of pocket” expenses explained before the services are rendered?


Principle #7 – PT shall promote organizational behaviors and business practices that benefit patients/clients and society

7B – Physical therapist shall seek remuneration as is deserved and reasonable for physical therapist services

7E – Physical therapists shall be aware of charges and shall ensure that documentation and coding for physical therapy services accurately reflect the nature and extent of the services provided

Ethics Which Rule Supervision of Personnel

Principle 3E – Physical therapists shall provide appropriate direction and communication with physical therapist assistants and support personnel

Principle 4B – Physical therapists shall not exploit persons over whom they have supervisory, evaluative or other authority

Principle 5B – Physical therapists shall have primary responsibility for supervision of physical therapist assistants and support personnel

Legal Requirements Regarding Supervision of Personnel

PT Board Regulation – Title 16, Cal. Code Regs., Section 1398.44 “Adequate Supervision Defined” –PT Assistants

PT Board Regulation – Title 16, Cal. Code Regs., Section 1399 “Requirements for Use of Aides”

PT Board Regulation – Title 16, Cal. Code Regs., Section 1399.10 “Supervision of PT License Applicants”

PT Board Regulation – Title 16, Cal. Code Regs., Section 1399.12 “Superviison of PT Assistant License Applicants”

The Top 8 Disciplinary Actions:

Unprofessional Conduct (patient neglect/safety) Unprofessional Conduct (sexual misconduct) Lack of supervision of assistive personnel Lack of documentation Unprofessional conduct (illegal practice of

medicine/diagnosis of disease) Unprofessional conduct (illegal practice of acupuncture/dry

needling) Unprofessional conduct (failure to document wellness

services) Unprofessional conduct (DUI)

Ethics Related to Practice Structure

Who owns the Practice?

PTMD

Partnership


Who can a PT “partner” with in a corporation in 2015?Anyone listed in Moscone-Knox Professional Corporations Act (Corps. Code sec. 13401.5)No such thing as PT “general corporation” any longer Defines “PT Professional Corp”Allows most healthcare licensees to work for other healthcare professional corporations (Corps. Code sec. 13401.5).


Principle #5 – 5A – Physical Therapists shall comply with

applicable local, state and federal laws and regulations.

Kepler.sos.ca.gov


“Creative” office lease and use arrangements:

A Form of “Referral for Profit” KickbacksSliding Lease/Rent Scale Depending Upon

Referral Volume

Corporate Concerns?

Consolidated Healthcare – Multidisciplinary services being provided under the umbrella of a single business entity (The Kaiser’s of the world)

Is this a legal form of referral for profit? How can you (a PT employee) be sure the business structure,

operations and billing practices are not jeopardizing your license?

Consumer Direct Access

Business & Professions Code 2620.1

“A person may initiate physical therapy treatment directly from a licensed physical therapist if the treatment is within the scope of practice of physical therapists, as defined in Section 2620, and all of the following conditions are met.”

Consumer Direct Access Conditions imposed by the law:

If, at any time, the physical therapist has reason to believe that the patient has signs or symptoms of a condition that requires treatment beyond the scope of practice of a physical therapist…the physical therapist shall refer the patient to a physician, surgeon, or a chiropractor. (Principle 3C)

The physical therapist shall disclose to the patient any financial interest he or she has in treating the patient. (Principle 7D)

With the patient's written authorization, the physical therapist shall notify the patient's physician and surgeon, if any, that the physical therapist is treating the patient. (Principle 5A)


Conditions imposed by the law:

“The physical therapist shall not continue treating the patient beyond 45 calendar days or 12 visits, whichever occurs first, without receiving, a dated signature on the physical therapist's plan of care indicating approval of the physical therapist's plan of care. Approval of the physical therapist's plan of care shall include an in-person patient examination and evaluation of the patient's condition.”


Conditions imposed by the law:

The 14pt disclosure notice Sample at: www.CCAPTA.org/?page=A15

Sample 14pt Disclosure

Direct Physical Therapy Treatment Services Disclosure Statement

You are receiving direct physical therapy treatment services from an individual who is a physical therapist (PT) licensed by the Physical Therapy Board of California. Under California law, you may continue to receive direct physical therapy treatment services for a period of up to 45 calendar days or 12 visits, whichever occurs first, after which time a physical therapist may continue providing you with physical therapy treatment services only after receiving, from a person holding a physician and surgeon’s certificate issued by the Medical Board of California or by the Osteopathic Medical Board of California, or from a person holding a certificate to practice podiatric medicine from the California Board of Podiatric Medicine and acting within his or her scope of practice, a dated signature on the physical therapist’s plan of care indicating approval of the physical therapist’s plan of care and that an in-person patient examination and evaluation was conducted by the physician and surgeon or podiatrist. ___________________ ____________________ ___________________ Patient Signature Printed Name Date


Business & Professions Code 2620.1

“Nothing in this section shall be construed to require a healthcare service plan, insurer, workers' compensation insurance plan, employer, or state program to provide coverage for direct access to treatment by a physical therapist.”


Treating without a Diagnosis???

Currently PTs are not authorized to diagnose disease/pathology—so, what do we put in the Dx box for billing?

The Physical Therapy Board of California (ptbc.ca.gov) has affirmed that assigning an ICD-9 code to describe a persons functional impairment will not be construed as unlawful practice of medicine in the form of diagnosis of disease.


Professional Obligations = Ethical Obligations

Clinically competent in medical screening: Is the patient appropriate for PT?

14-point font Disclosure – Disclose time limitations to patient

Appropriate treatment utilization

Consumer Direct Access: Professional Opportunities

Practicing at the full extent of your professional preparation, education and training.

To uphold professional values and practice as a musculoskeletal primary care provider.

Develop life long relationships with your patients: They begin to identify you as “their” physical therapist!

To be able to promote yourself and your unique expertise directly to your target audience – and know that you can see “anyone” that comes through your door.

Opportunity to foster collegial relationships with local specialists and primary care providers.

Remediating Ethical Complaints


*Why People Break Rules: - Human Error- Stuff Happens- Negligence - Recklessness

*Kirsch, N: 2008 Federation of State Boards Annual Meeting


More Questions than answers: Do licensing boards address “legal” component of

infraction and the “ethical”? How do we assess “ethical decision making?” Should a license be revoked temporarily or permanently? Can individuals adopt higher standards of behavior” Do we punish “human error”? Especially in the case of a

first offense? Do offenders really change behavior or just learn to deal

with the system?

Remediating Ethical ComplaintsWhat we do know:

- Studies reveal ethical decision making declines over years of practice. - Ethical decision making is evolutionary- Some people are not able to differentiate between

kinds of behaviors.- We all need the skills to recognize and deal with

ethical situations responsibly. - We are not exactly sure the best way to teach the

skills!

Remediating Ethical ComplaintsWhat’s Available for Learning:

* Online learning modules- APTA “professionalism”module - Various online CE providers; and there are

many! *Reading Material – self study

- APTA Documents

Ethical behavior is what you do when

nobody is looking!

Open Q & A

Ethics and Professionalism in Contemporary Physical Therapy Practice

Law

Transcript of Ethics and Professionalism in Contemporary Physical Therapy Practice