Issues in Ethics: Obtaining Clients for Private Practice From Primary Place of Employment
About this Document
Published 2017. This Issues in Ethics statement is a revision of Obtaining Clients for Private Practice From Primary Place of Employment (2014), which revised Accepting Referrals for Private Practice From Primary Place of Employment (2008) that was originally published as Drawing Cases for Private Practice from Primary Place of Employment (2001). It has been updated to make any references to the Code of Ethics consistent with the Code of Ethics (2016). 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.
Issues in Ethics Statements: Definition
From time to time, the Board of Ethics (hereinafter, the "Board") 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
Code of Ethics
(2016) (hereinafter, the "Code") and are 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., Phase III of the Stark Law prohibits a physician from referring his or her patient to his or her private radiology business for testing). Likewise, it is important that audiologists and speech-language pathologists (SLPs) maintain the highest standards of integrity during the discharge of their professional responsibilities. It is appropriate, therefore, that the Board provide guidance relative to recruiting patients/clients/students from one's place of employment to one's private practice of audiology or speech-language pathology.
This Issues in Ethics document pertains to an explicit rule in the Code. ASHA professionals may be in violation of the Code by failing to observe Principle of Ethics III, Rule B, which states that "Individuals shall avoid engaging in conflicts of interest whereby personal, financial, or other considerations have the potential to influence or compromise professional judgment and objectivity." In addition, ASHA members who violate the former Rule, are likely to also violate Principle of Ethics I, Rule H, which states "Individuals shall obtain informed consent from the persons they serve about the nature and possible risks and effects of services provided, technology employed, and products dispensed..."
A number of cases have come before the Board that revolve around a real, perceived, or potential conflict of interest. In its summary of these cases, the Board 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 (a) must be fully informed in a timely manner of services available from the practitioner's primary employment setting as well as those from the private practice or other practice environment and (b) must be given freedom to choose whether and from whom they will obtain professional services.
- Being "fully informed" requires obtaining informed consent from the persons served about the nature and possible risks and effects of services provided, technology employed, and products dispensed. This obligation also includes informing persons served about possible effects of not engaging in treatment or not following clinical recommendations.
- 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-competition 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 list.
Case #1: Schools
Ms. Jones, an SLP, worked full-time for 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 whom 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 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 whom 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 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 Code by failing to observe Principle of Ethics III, Rule B, which deals with a conflict of interest.
In her response to a Board 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 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, pursuant to Principle I. 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 affirmed the principle that once people are timely and 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. 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
Ms. West, a clinical educator, worked part time supervising graduate students in practicum at the university clinic and also maintained a private practice specializing in voice disorders and accent modification. 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 noncompetition 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 that was being offered at a competitive/comparable rate. The clinic director, Dr. Brown, heard about this apparent conflict of interest from one of the other clinical educators who had learned about the outside referrals when she provided 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 modification with a second year graduate student.
In a posttreatment conversation with each of these two clients, it became apparent that the clients were also going to be seen later in the week by Ms. West at her home. They were apparently very pleased with the arrangement, felt they were improving, 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 Ms. West, clients approached her for additional treatment time that was unavailable in the busy university clinic. Ms. West 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 modification and voice disorder services. Reportedly, other clients had actually requested her "supplemental services" but she had declined to see those clients because they did not have the diagnoses of the individuals she saw privately. In addition, those same clients were requesting that Ms. West provide insurance authorization and coverage, which she 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 Board.
The ethics issue at its core was a genuine conflict of interest. Ms. West failed to advise her employer of her plan to see her university clients in her private practice. Her students were reportedly not informed of progress towards goals. Moreover, the clients had not given their informed consent to be seen in her private practice as required by Principle of Ethics I, Rule H. The Board found Ms. West in violation of Principle of Ethics III, Rule B and Principle of Ethics I, Rule H, due to her participation in professional activities that constituted a conflict of interest.
Case #4: Long-Term Care
A long-time SLP, Ms. Amandas worked for an agency that provides temporary physical therapists (PTs), occupational therapists (OTs), and SLPs to long-term care settings. When Ms. Amandas applied for the agency position, she understood that it would be part time and would not interfere with her own private practice. Ms. Amandas disclosed to her employer that she had a private practice limited to school-aged children whom she saw in her home and that she did not plan to see any adults in her private practice. She reportedly provides the parents of her clients with an informed consent that includes disclosure of fee arrangements and other contractual requirements such as the need to cancel an appointment 24 hours in advance to not be billed for the service.
Ms. Amandas attended a session on ethics at a state speech-language and hearing convention. After attending this session and reviewing the Code, Ms. Amandas thought she might be in violation of the Code because of her arrangement. She reported herself to both her state licensure board and the Board. Her response from both bodies was constructive. Both bodies commended the self-disclosure and neither found her in violation because she clearly had advised her employer in advance of her private practice, the population of which was pediatric versus the agency’s adult population. Ms. Amandas could choose to see adult clients in her home provided that (a) her employer was aware of it and approved of it and (b) 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 Ms. Amandas to one of their clients being discharged to home from the long-term care institution for follow-up speech-language pathology services. This would not be a conflict of interest because 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 avoid or 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 Code for direction. Professionals may also consult with the ASHA director of ethics (firstname.lastname@example.org). In the current business climate, with violations of ethics and civil and criminal penalties being publicized, ASHA members and/or certificate holders must be ever-vigilant that their business conduct is transparent, honest, and ethical.