Thursday, January 14, 2010

Commentary on Opinions of APA Ethics Committee III

Continued from:  Commentary on Opinions of APA Ethics Committee II

With societies around the world grappling with questions of how to pay ever increasing costs of medical care and who should receive how much care for what without having to pay, the ethics of money and psychiatry continues to evolve. But APA too often neglects to address conflicting principles and sometimes gives non-ethical considerations excessive weight.

The Opinions of the Ethics Committee on The Principles of Medical Ethics


The new opinions document may not have addressed a case in point at all: Section 9 of the code states that, "A physician should support access to medical care for all people." Talk about a feel good principle. Who could possibly speak against such an ideal? Perhaps those who realize that someone must pay for that care. This principle smacks of politics. I wondered whether a psychiatrist who voted for a public official who opposes universal access to medical care might face charges of ethical misconduct: Democrats, ethical, Republicans, unethical.

When I submitted this question to the Ethics Committee the chairman suggested I ask the AMA. AMA (of which I am not a member) failed to respond. Perhaps we need a test case. Volunteers? I believe this "principle" has no relevance to practice of medicine, including psychiatry, and should be removed. I believe it would be unethical to discipline a physician based on a political view or party alignment.

If Section 9 does apply to the physician - patient relationship, does it imply that all physicians must treat all comers regardless of their ability, or intention, to pay? That might be a slippery slope. Would it apply to physician executives? to cosmetic surgeons?

So here comes the conflict: The ethics guideline document argues against professional courtesy,  the tradition of physicians providing treatment for other physicians or their families at low or no charge so that physicians will not try to treat themselves or members of their own families in order to save money. The guideline cites "give and take" as critical to the transaction, indicating that without payment the patient might harbor doubts as to whether the treatment provided measures up to that for paying patients. But any patient might harbor such doubts about low or no fee treatment. And what about the psychiatrist on salary to a clinic or health system or whose fee is paid by a friend or relative of the patient, an insurer or HMO, or an employee assistance program?

K.2.g. (page 46, 1981)
Now we move to the opposite extreme: the ethics of charging an "exorbitant" (but unspecified) fee. According to this answer from almost 30 years ago (before managed care) an ethical psychiatrist can charge a "reasonable" fee. What constitutes an unreasonable fee, and who might determine this? According to the answer such a person must be "knowledgeable as to current charges made by physicians." An unreasonable fee would leave such a person "with a definite and firm conviction that the fee is in excess of a reasonable fee" after considering factors such as "difficulty and uniqueness of services performed and the time, skill, and experience required," "customary" fees charged by other physicians for similar services, the amount (There's a surprise.), the "quality of performance,"  and the "experience, reputation, and ability" of the psychiatrist. So we need someone who knows the local fees, and her conviction must be firm AND definite. No soft or fuzzy convictions allowed. And how does this person judge these factors? Some of them overlap. The skill required, quality of performance, and ability of the physician might seem very similar. And how does one judge the quality of a medical management visit, let alone a psychotherapy session? How about shock therapy? How skillfully did she press that button or set the voltage?

This discussion ignores the matter of price fixing addressed by anti-trust statutes, which might even prohibit such a process of price determination by this mythical knowledgeable person. Today many physicians accept less than the actual fee anyway in order to contract with insurers or Medicare. But the most glaring omission in this discussion comes from basic economics. Supply and demand determine price. If patient and third party payer refuse to pay, the psychiatrist must lower the price or find another occupation. The opinion makes no mention of the patient's ability to pay. A destitute patient might not have $10 to spend on treatment, while for a wealthy patient might barely notice the financial impact of a $10,000 fee for the same service.

The determination of what consitutes a "reasonable" fee is in fact subjective. The committee should not pretend otherwise. For further, more recent, discussion of a related problem see my earlier post: The Best Treatment or Just the Most Expensive?
 
K.2.e. (page 45, 1978)
This one has stood the test of time. According to APA we can still ethically charge for missed appointments and raise our fees "in the middle of treatment" provided we inform the patient in advance. I suspect "treatment" here refers to psychotherapy rather than pharmacotherapy or ECT. Once more the opinion fails to specify this, probably because of the erroneous assumption that all psychiatrists practice psychotherapy. Again, recent changes in law may affect what we can do with fees, and third party payers generally consider a claim for a missed session as either fraudulent or not covered, depending on how we file the claim. Here the law may discourage professional courtesy. Government agencies may accuse us of fraudulent billing if we claim one fee on insurance forms, but charge a lower fee to other patients. I have been tempted at times to raise fees for new patients while keeping the fee constant for established patients, wishing to avoid imposing a hardship. But this implies that somehow the patient cannot make it without me, which may not be the best attitude with which to approach treatment of any kind. Few of us should consider ourselves indispensable. In fact I believe many patients can benefit from a fresh approach.

K.2.m. (page 48, 1986)
This psychiatrist allowed his patient to build a large balance. He sent the account to collection which succeeded, but only at a cost of one third of the total. When the insurance company did eventually pay, he wanted to keep the money to cover the collection agency fee. I agree with the committee that we cannot ethically do this. Avoid situations like this by requiring patients to keep accounts current. Don not trust insurance companies to pay you. By law they can demand that you repay them later if they decide they erred in paying you. If you allow your patient's account to build, the FTC considers you a "lender" and can subject you to identity theft rules. (See my earlier post: Need a Loan? See Your Doctor!)

L.5.a. (page 54, 1978)
Even more than 30 years later this still timely question stirs interest: Can we ethically use money provided by drug companies to pay for continuing education activities. The cowardly response and justification bother me: "Without advertising from drug companies our journals would be very expensive." Since when does a question of ethics hinge on the cost of publishing a journal?

N.1.5. (page 61, 1990)
Similar to the prior opinion, this one invokes realities of cost, perhaps with slightly more justification. The questioner wants to know whether she can ethically assume more responsibilities than salaried time allows her to complete effectively. The opinion states she can ethically do this because, "For us to declare otherwise might place an even greater burden upon our underfunded public institutions." I am glad the committee can allow reality to enter ethical discussions, but one could just as easily imagine declaring participation in executions ethical because to declare otherwise would result in overcrowded prisons.

I submitted the following two questions to the committee over the past few years. I wonder why the committee chose to omit them from the opinions document.

Question: What, if any, is my ethical responsibility to assist patients in obtaining insurance reimbursement for my services?  May I ethically charge a fee for such service?

Answer: "Our responsibility to patients (Section 8) and our need to maintain consideration for patients and their circumstances (Section 2, Annotation 6) suggest that such assistance, while not obligatory, is appropriate, and may be advisable. The contractual arrangement between patient and psychiatrist (Section 2, Annotation 5) should establish in advance whether a charge may be made for such service.  When this has been done, charging a fee is not inherently unethical.  However, when the time required is not unduly burdensome, the ethical psychiatrist may elect to waive a fee."

While I am glad the committee did not attempt to impose an ethical duty to an insurance company, possibly a commercial, for-profit organization, once more it seems they have subordinated ethical considerations to financial realities, potentially a slippery slope with role conflict implications.

Does this opinion not conflict with the earlier opinion included in the document: D.4.f. (page 24, 1990). Clearly predating my question, this opinion states that the ethical physician should "complete"  with no fee, a "simplified" claim form, but not necessarily multiple or complex forms to enable the patient to receive benefits. I believe it wrong to impose a duty on the physician to obtain money for a patient. I regularly see this lead to physician's attempting to meet patient expectations by stretching the truth to obtain disability funds, win custody disputes, or to prevail other legal disputes, often with little or no appreciation for the consequences. We should confine our activities to clinical duties.

The committee also seems to have employed this euphemism, completing the form, when they should have addressed the actual content or consequences of the form, considering whether the statements attested to are true or whether the physician can ethically opine on the issues presented in the form. The committee has also failed to address the possibility of role conflict where completing the form might imply duty to the insurance company.

Certain types of patients in my clinical practice demonstrate a propensity to obtain a prescription for a controlled substance then fail to continue in supervised treatment, leaving me liable for adverse outcomes, but with no control. I hoped to discourage this by having the patient pay in advance for the last visit ever, but I wanted the committee's opinion regarding ethical considerations.

Question: Is it ethical to require advance payment for the last or final visit at the start of treatment?

Answer: "I’ve spoken with [the chairman] and he’s indicated that this really isn’t an ethics issue. Section 6 of the Principles provides:  “A physician shall, in the provision of appropriate patient care, except in emergencies, be free to choose whom to serve, with whom to associate, and the environment in which to provide medical care.”

"I followed up with our Office of Healthcare [sic] Systems and Financing and they provided the following advice:

“This question seems to be a practice procedure question. Any procedures a psychiatrist utilizes in day-to-day operations should be communicated in advance to all patients. If the doctor wants to implement this policy I would recommend that he add this to his information he provides to new patients. It is probably best that the information be provided in writing so there is no confusion. I would also suggest that the psychiatrist make at least a note in the chart that the patient received the information, the psychiatrist asked for any questions and that they understand all the office policies. If this change will affect his current patients I would suggest providing them the new office policy, have a discussion as to understanding, questions and document the discussion.”

The committee copped out. They imply my proposed practice meets ethical muster, but they should have stated as much. Many of the questions addressed in the opinions document might be considered "practice management" questions. The committee remains responsible for considering the ethical implications and providing guidance to members when requested.

Commentary on Opinions of APA Ethics Committee IV

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