Issues in Ethics: Obtaining Clients for Private Practice From Primary Place of Employment
About this Document
Published 2014. This Issues in Ethics statement is a revision of Accepting Referrals for Private Practice From Primary Place of Employment (2008), which revised Drawing Cases for Private Practice from Primary Place of Employment (2001). The Board of Ethics reviews Issues in Ethics statements periodically to ensure that they meet the needs of the professions and are consistent with ASHA policies.
From time to time, the Board of Ethics determines that members and certificate holders can benefit from additional analysis and instruction concerning a specific issue of ethical conduct. Issues in Ethics statements are intended to heighten sensitivity and increase awareness. They are illustrative of the ASHA Code of Ethics (2010r) and intended to promote thoughtful consideration of ethical issues. They may assist members and certificate holders in engaging in self-guided ethical decision making. These statements do not absolutely prohibit or require specified activity. The facts and circumstances surrounding a matter of concern will determine whether the activity is ethical.
This Issues in Ethics statement is presented for the guidance of ASHA members and certificate holders in matters relating to a conflict of interest in which an ASHA professional recruits for his or her own private practice clients from his or her primary place of employment. The following information is provided in an attempt to heighten sensitivity, increase awareness, and enhance judgments in those circumstances in which conflicts of interest in patient/client/student recruitment influence or appear to influence professional conduct. In the medical arena, for example, physicians may not refer patients from a primary place of employment to their own private business (e.g., the Stark Law Phase III prohibits a physician from referring his or her patient to his or her private radiology business for testing). Likewise, it is important that speech-language pathologists and audiologists maintain the highest standards of integrity during the discharge of their professional responsibilities. It is appropriate, therefore, that the Board of Ethics provide guidance relative to recruiting patients/clients/students from one's place of employment to one's private practice of speech-language pathology or audiology.
This Issues in Ethics document pertains to an explicit rule in the ASHA Code of Ethics (2010r). ASHA professionals may be in violation of the ASHA Code of Ethics by failing to observe Principle of Ethics III, Rule B, which states that “Individuals shall not participate in professional activities that constitute a conflict of interest.”
A number of cases have come before the board that revolve around a real, perceived, or potential conflict of interest. In its summary, the Board of Ethics stated that practitioners who intend to accept cases for their private practice from the place of primary employment should observe the following guidelines:
- The persons served professionally must be fully informed of services available from the practitioner's primary employment setting as well as those from the private practice or other practice environment and given freedom to choose whether and from whom they will obtain professional services.
- The costs associated with obtaining services from the practitioner's primary employment setting versus those associated with the private practice must be made clear.
- Practitioners accepting cases in a private setting from their primary place of employment must inform the administrator at their primary employment setting of their intent.
- Practitioners must honor any non-compete contractual agreements stipulated by the employer.
A number of additional cases have come before the board with complaints similarly related to Principle of Ethics III, Rule B. These descriptions of a conflict of interest warrant review and discussion below. The four case illustrations (Schools, Medical Facility, University Clinic, and Long-Term Care) describe real or potential conflicts of interest but are not intended to be an exhaustive listing.
Case #1: Schools
Ms. Jones, a speech-language pathologist, worked full-time 10 months per year in a public school setting. For many years, Jones’s school district offered limited speech-language pathology services during the summer months. Each summer, Jones offered professional services privately to children she usually served during the school year. This service was popular with several parents who did not want their children to go without services until the following September, even though they had to pay Jones for the services she rendered to their children. Recently, the school district has expanded the summer speech-language pathology program but did not ask Jones to provide these services. Instead, the program was run by Ms. Smith, one of the district's other speech-language pathologists. This year, as in the past, Jones informed her school superintendent that she intended to offer professional services privately during the summer months. The parents of several children Jones served during the year did not enroll their children in the school's summer program. Instead, they brought their children to Jones for private professional services.
Smith initiated a complaint to the Board of Ethics alleging that Jones violated the principles of ethical conduct by “spiriting” clients away from the school program for her private practice. More specifically, Smith alleged that Jones had violated the ASHA Code of Ethics by failing to observe Principle of Ethics III, Rule B, which deals with a conflict of interest.
In her response to a Board of Ethics inquiry, Jones said she had not spirited clients away from the school program; those parents who brought their children to her for services did so of their own volition. She maintained that parents should be free to choose from whom they wish to obtain professional services. Jones said that the parents knew they would have to pay her for her services, and that they could obtain adequate professional services free of charge through the school program. Furthermore, Jones said, she had notified the school superintendent of her intent to offer services privately, and he had not objected.
In a report of its findings, the Board of Ethics said that when practitioners draw cases for a private practice from a primary or former employment setting, preservation of the best interests of the persons served is of paramount concern. Implicit in that concern is the understanding that practitioners will not involve themselves in activities that conflict with the best interests of the persons served or the best interests of the professions. The Board of Ethics affirmed the principle that once people are fully informed of the choices available to them, they have the right to choose whether and from whom they wish to obtain professional services for their communication problems.
Case #2: Medical Facility
Dr. Mike Michaels is an audiologist working full time in a medical center. He buys into a private audiology practice located about 20 miles away. While seeing patients at the medical center, he distributes his private practice business information. Upon learning of his attempt to recruit patients for his private practice, the hospital administration discussed their concerns and the implications of his actions.
He consulted with the ASHA director of ethics who listened to his explanation and provided him with appropriate documents, which allowed him to make an informed decision. He decided to no longer promote the private practice while at his primary place of employment. Dr. Michaels informed the hospital administration of his decision to refrain from recruiting patients from the medical center, and the matter was considered resolved.
Case #3: University Clinic
Wanda West, a clinical supervisor, worked part time supervising graduate students in practicum at the university clinic and also maintained a private practice specializing in voice disorders and accent reduction. Ms. West did not have an employment contract but was hired several years ago by the university with a job description outlining her supervisory responsibilities. To her recollection, she did not sign a noncompete agreement with the university. It had come to the attention of the clinic director that Ms. West offered several clients an opportunity to receive additional “professional therapy not rendered by a student” that would not conflict with their university clinic appointments and was at a competitive/comparable rate. The clinic director, Dr. Gail Brown, heard about this apparent conflict of interest from one of the other clinic supervisors who had learned about the outside referrals when she provided the supervision of several clients during Ms. West's unscheduled leave. One of the clients was a person with an organic voice disorder and one of the clients was working on articulation and accent reduction with a second year graduate student.
In a posttreatment conversation with each of these two clients, it became apparent that they were also going to be seen later in the week by Ms. West in her home. They were apparently very pleased with the arrangement, felt they were getting better, and felt that the out of pocket expense was well worth it to enhance their communication skills. The clinic director verified the information with the clients and then confronted Ms. West when she returned to work. According to Wanda, clients approached her for additional treatment time that was unavailable in the busy university clinic. Wanda reportedly would only accept cash or checks for reimbursement and was in a position to “provide continuity of care” for each of these university clinic clients as the treatment goals and methods were the same.” Dr. Brown met with Ms. West and put her on unpaid leave while she investigated this issue further. In her investigation, it became apparent that this practice had been going on for over a year, but only with the population that Ms. West saw privately—individuals seeking accent reduction and voice disorder services. Reportedly, other clients had actually requested her “supplemental services” but she declined to see those clients as they did not have the diagnoses of the individuals she saw privately. In addition, those same clients were requesting that Wanda provide insurance authorization and coverage, which Wanda did not accept.
Dr. Brown met with Ms. West and reviewed her findings regarding Ms. West's potential conflict of interest. The charges were denied and Ms. West pointed out that she only accepted cases that she had demonstrated expertise in treating, that she was comfortable supervising, and that benefited from increased treatment frequency and intensity. She contended that clients were not over- or undercharged and that her private practice documentation complemented that of the university and demonstrated excellent progress and test–retest supporting data. In addition, she pointed out that the clients remained in the university clinic and were also benefiting from the student interventions. The clinic director was not persuaded by these arguments, terminated Ms. West, and lodged an ethics complaint with the ASHA Board of Ethics.
The ethics issue at its core was a genuine conflict of interest. The clinic supervisor failed to advise her employer of her plan to see her university clients in her private practice. The students were reportedly also not informed of progress towards goals and the clients had not signed an informed consent for her private practice. The board found Ms. West in violation of Principle of Ethics III, Rule B, due to her participation in professional activities that constituted a conflict of interest.
Case #4: Long-Term Care
A long-time SLP, Amanda, worked for an agency that provides temporary PTs, OTs, and SLPs to long-term care settings. When Amanda applied for the agency position, she understood it would be part time and would not interfere with her own private practice. Amanda disclosed to her employer that she had a private practice limited to school-age children that she sees in her home, and that she did not plan to see any adults in her practice. She reportedly provides the parents of her clients an informed consent with disclosure of fee arrangements and other contractual requirements such as the need to cancel an appointment 24 hours in advance in order not to be billed for the service.
Amanda attended a session on ethics at a state speech-language and hearing convention. After attending this session and reviewing the Code of Ethics, Amanda thought she might be in violation of the Code of Ethics because of her arrangement. She reported herself to both her state licensure board and the ASHA Board of Ethics. Her response from both bodies was constructive. Both bodies commended the self-disclosure and neither found her in violation since she clearly advised her employer in advance of her private practice, which was pediatric versus the agency’s adult population. Amanda could choose to see adult clients in her home provided her employer was aware and approved of it, and that clients were not recruited without permission from the long-term care institutions that she served. It is indeed possible that the agency could recommend Amanda to one of their clients being discharged home from the long-term care institution for follow-up speech-language pathology services. This would not be a conflict of interest since the agency referred the client to the private practitioner.
This Issues in Ethics statement describes four case illustrations in which a real, perceived, or potential conflict of interest existed. The professional is encouraged to minimize a conflict of interest in the recruitment of clients from a primary source of employment by observing the guidelines outlined in this document and reviewing the ASHA Code of Ethics (2010r) for direction. Professionals may also consult with the ASHA director of ethics (firstname.lastname@example.org). In the current business climate, with violations of organizational ethics and civil and criminal penalties being publicized, ASHA members and certificate holders must be ever-vigilant that their business conduct is transparent, honest, and ethical.