Vol. 18 Issue 14
Knowing laws and ethics makes good OT practice
Ask anyone who's ever been to court: "I didn't know it was illegal" is never a viable defense. The same holds true in occupational therapy. If you violate the laws and ethics that govern the practice of OT, you'll be held accountable for your actions even if you didn't know. The best prevention? For starters, get copies of your state practice act and regulations and the AOTA Code of Ethics, read them and keep them on hand. Then, find out if there are more rules based on your practice setting, and learn those too. Should be no sweat, right?
What's the Difference?
Your state practice act (if you have one) and the regulations based on that law are the major legislative rules governing what you can and cannot do as an occupational therapist or assistant. These are the same laws that establish the rules for licensure and create a state occupational therapy board. They also define disciplinary actions for any violation of the regulations. These disciplinary actions will vary by state, but all state boards do have the power to revoke your licensure, which means you will be unable to practice.
The AOTA Code of Ethics, on the other hand, is "an articulation of the values and the principles of the profession, and it serves to guide members toward aspiring to ethical behavior," explained Janie B. Scott, MA, OTR/L, FAOTA, ethics officer in AOTA's Practice Department. Although all OTs should follow ethical practice guidelines, AOTA can only discipline AOTA members for ethical violations. The strongest possible disciplinary action is a permanent revocation of membership in the organization.
Finally, depending on where you work and who reimburses for your services, you may be beholden to still more rules. Medicare, for example, is probably the biggest, in terms of both number of OTs who bill through Medicare and the sheer volume of rules involved. The Individuals with Disabilities Education Act (IDEA) governs school-based practice. Other applicable laws or rules may include Medicaid, the Americans with Disabilities Act, and rules or codes of conduct of a third-party payer or your facility.
Violating Medicare rules generally results in denial of payment, and possibly a reprimand from your supervisor. Ethical or legal violations, however, carry stiffer penalties.
Often, an action that constitutes an ethical violation may be a practice act violation, and vice versa. For example, allowing your licensure to lapse also constitutes an ethical violation. Until this year, however, communications between the state OT boards and AOTA's Committee on Standards and Ethics (SEC), which oversees the Code of Ethics and handles all complaints and disciplinary procedures, were incomplete. According to Scott, the SEC has long followed the practice of investigating cases of disciplinary action by licensure boards if the committee feels that an ethical violation also may have taken place and the case requires additional action by the SEC. These ethics investigations are known as sua sponte complaints.
Cases of disciplinary action that result in censure or membership suspension by the SEC, however, are published in AOTA publications and are not necessarily brought to the attention of licensure boards. At the 2002 AOTA National Conference in Miami Beach, however, the Representative Assembly passed a motion authorizing the SEC to also forward this information directly to state regulatory boards and other public bodies.
To blur the lines further between ethics and law, a number of practice acts actually directly include a code of ethics of some sort in the regulations. According to Karen Smith, OT, regulatory associate in AOTA's State Affairs Group, some states have included AOTA's Code of Ethics in whole or in part; others have adapted it or developed their own. You should be aware of any ethical regulations in your state.
"They may change things if they don't feel their state has jurisdiction, such as references to setting fees for service or obtaining informed consent form research participants," said Smith. "But there are quite a few states who have adopted or adapted [the AOTA Code of Ethics], and there are some that don't have a code of ethics at all."
Not surprisingly, it is an ethical violation if you witness but fail to report any misconduct, unethical or illegal, by others, whether they be OTs or other professionals. Understanding the complaint process will give you a good idea of when to file a complaint, when to pursue other avenues, and how to tell the difference.
AOTA posts its ethics complaint form on its Web site. Additionally, the form as well as the Code of Ethics and Guidelines to the Code of Ethics are available from AOTA's Fax on Request line at 800-701-7735. Once a complaint is filed, the SEC reviews the case and decides whether indeed there has been an ethics violation. At any point during the year, the SEC may have about 8 to 12 open complaint cases and another 12 or so open sua sponte cases, Scott said.
A reprimand is a private communication to the therapist in question of identified ethical violations. Reprimands are not made public and are used for less serious complaints. Censure is a suspension of membership, and most serious is revocation of membership. For example, a therapist who lets her license lapse for a month may receive a reprimand, but a therapist who has been practicing without a license for five years may receive censure, explained Scott. Any suspension or revocation of membership is made public. If a complaint is dismissed with no specific ethics violation, but the SEC finds that the therapist was not acting in the most ethical manner, the committee may write the therapist a letter "which helps the individual to understand that their behavior did not fall into the best level of practice," Scott added.
Ethics issues often involve competence, Scott said. Whenever you provide any intervention, you must be competent in the delivery of that intervention. Providing services without competence may endanger the patient.
"OTs have a real responsibility and obligation to be competent in the services that they are delivering," Scott said. "This is particularly relevant when students are entering practice and when therapists are switching practice areas. [If a therapist is asked to provide such a service], they would have to tell the employer, 'I am not competent to provide these services, and it would be unethical for me to do so.'"
Scott also cautioned therapists to be wary of ethics in their communications about patients, especially now that patient privacy is such a hot issue. Both electronic and verbal communications can be considered public if you aren't cautious of security or who may be overhearing your conversation. She gave a personal example of her local pharmacist, who was so busy that he put customers on speakerphone to call in their prescriptions while he worked. Other customers within earshot of the speakerphone could hear detailed information about the caller, a definite violation of patient privacy.
Scott's office receives a number of inquiries from therapists, consumers and other health care professionals, who aren't ready to file a complaint but seek guidance on possible ethics violations. If they have not already done so, Scott encourages callers to review the code and ascertain whether the matter at hand constitutes a violation. The process, she said, requires education of all parties involved.
"[Some people feel that] if all AOTA can do is revoke membership then it isn't a big deal," Scott explained. "But the notion that someone has had an ethical complaint filed against them is a very serious charge. Whether it is just a situation discussed between the commission and the individual or it is public, it is dealing with your profession and your livelihood."
If the Practice Department receives several inquiries on the same subject, the SEC may deem it necessary to issue an advisory opinion. These documents go out to the entire membership and outline the ethical principles involved in a certain topic. Previous advisory opinion topics have included plagiarism, patient abandonment and reimbursement issues.
Scott's office also counsels therapists who feel their employers may be asking them to do things that are unethical. Some attempt to rectify the situation; others feel they are forced to quit.
"I try to advise folks that no matter how they decide to continue, it is probably in their supervisor's or employer's best interest to be made aware of the Code of Ethics and state regulations," Scott said, "because it is not only this therapist who is in jeopardy but other therapists and the facility and the patients. I would tell the caller to check with the facility's code of conduct, and other legal channels like the EEOC (the Equal Employment Opportunity Commission). In cases like this, the impact is not only on yourself but on the profession as well."
Procedures for reporting violations of the state practice act vary from state to state, but usually involve filing complaints either directly with the state's OT board or with a separate office that handles complaints for state-licensed professionals including OT. Violations most frequently involve lapse of license, although they can include a violation of any portion of the regulations. Penalties can range from fines to probation to temporary or permanent suspension of license.
According to Smith, one of the areas where OTs really need to know the law is supervision of OTAs. "They might be totally out of compliance with what their state requires," she said. "This can vary widely, such as you can't supervise more than three assistants, or supervision activities must be recorded in a supervision logthere are specific things that people really need to be aware of, and often they are not.
"Also, OTs are legally responsible for the actions of the OTA related to patient care. In most states both [the OT and the OTA] get disciplined. I think they really take that for granted and don't realize their liability."
Scope of practice is also defined by your state practice act, and performing treatments that fall beyond your scope of practice can result in disciplinary actions. Smith explains that in most states' laws, scope of practice is very broadly defined. It doesn't spell out every little thing an OT can or cannot do, but it can be explicit about some skills that aren't traditional entry-level OT. For example, about 15 states have specific language defining appropriate use of physical agent modalities by OTs. Some states require supervised training or even special certification in order for OTs to use PAMs.
Being aware of your practice act in its entirety not just your continuing education requirements is critical, Smith said. Moreover, you are responsible for knowing any changes that are made to the regulations. It is completely up to you to be aware of the laws that regulate your practice, and a violation of those laws could cost you your livelihood. Texas and New Mexico even require you to take a juris prudence exam, which basically amounts to an open book test on the licensure laws, and Maryland is looking into adding this requirement.
Medicare is a prime example of an entity outside the OT profession whose rules still influence, dictate or restrict OT practice. For the vast majority of OTs who work with Medicare, the worst fate is denial of payment (which may or may not accompany some type of reprimand at your facility). Those found guilty of fraudulent or abusive billing practices, however, could face legal action. And yes, fraud and abuse also constitute both ethical and practice act violations.
"It is essential when any therapist is treating a patient that they know who is paying the bills because then there are certain rules attached," said Judy Thomas, director of reimbursement and regulatory policy at AOTA. "You want to give the patient the quantity and quality of therapy they need, but you have to aware of the restrictions of any payer."
At its best, Medicare can be confusing. There are different rules for different settings, and different interpretations of those rules with different levels of authority. Foremost is actual Medicare law, which is highest in authority but also the most general. Then, the Centers for Medicare and Medicaid Services (CMS) issues their interpretation of the law in the form of regulations which are published in the Federal Register; CMS also has specific requirements for different settings, set forth in manuals. These policies are supplemented or altered through program memorandums, released periodically by CMS. Finally, Medicare policies may be interpreted by Medicare intermediaries and carriers, the ones who actually process the claims and pay the bills. The interpretations are generally what cause denials.
Fortunately, you can solve most of your problems pretty easily. If someone ever tells you what you can or cannot do under Medicare, ask to see it in writing. Depending on the source, you'll know whose interpretation you are hearing and what the regulations actually say. Then you should be able to talk or document your way out of the problem.
"Medicare doesn't tell you how to function every minute of the day, and we don't want them to," Thomas explained. "Therapists should be using clinical judgment. When you use good clinical judgment and you document what you are doing well and it is all related to the patient's goals, then all you will have is a difference of opinion, and that's not so bad. Then if there is a problem they have to tell you how you should fix it."
The best defense is a good offense-be armed with information so that you can back up your claim if anyone questions it. Check out the Medicare manual for your setting and any available fact sheets (all available online at www.medicare.gov). Know how CPT coding works, not just a cheat sheet of codes. Writing the code correctly saves everyone a lot of trouble. Get a copy of the Medicare review policy for OT in your setting (this is the policy that tells reviewers what to look for in documentation and coding). Know what to include and what to avoid and write your documentation to reflect that. Even borrow some of the language, because you can't expect a claims reviewer to understand "OT speak." For example, if you document that you "helped a patient with eating," a reviewer might wonder why an aide couldn't have done that.
In the end, adhering to the Code of Ethics, your state regulations and other rules should not be a means to avoid disciplinary action or denial of payment. Rather, you should use these documents and statutes as guides in practicing the best possible occupational therapy, for yourself, your patients and your profession.
"Patients are different, circumstances are different and environments are different," said Thomas. "That is why we use therapists, not robots."
For more information, contact AOTA at 301-652-2682 or www.aota.org; for a listing of state regulatory bodies, visit the ADVANCE Web site at www.occupational-therapy.advanceweb.com/otstatutes.html; for Medicare manuals and other information, visit www.medicare.gov.
Jill Diffendal is ADVANCE associate editor. She can be reached at firstname.lastname@example.org.