Roles, Rules, and Regulations: Finding Our Way

1. Doing the Right Thing: • Ethics and Risk Management Texas University and College Counseling Directors Association Conference April 19, 2012 Roles, Rules, and Regulations: Finding Our Way

2. Today’s Focus • Knowing versus doing ethical practice • Considerations for our students, supervisees, and ourselves • Regulatory oversight • An overview of the process and trends • Ethical challenges on campus • Current cases and trends

3. Application of Ethical Principles • What we know we should do, we don’t do • Whether students in training or seasoned clinical psychologists • The nature of the ethical issue and its affective implications for the trainee or practitioner appears to influence to what degree we do that which we know is consistent with ethical practice (Bernard, et al., 1986, 1987)

4. Ethical Decision-Making vs. Ethical Willingness • Study by Betan & Stanton, 1999 • 95% of students (N=256) were aware of what they should do (i.e., involve training director or supervisor in case of colleague’s continued drinking problem) • Half would do less than what they believed they should do

5. Knowledge vs. Behavior • The gap between knowing and doing what is considered ethical is likely greater for practitioners in general than is empirically known (Rogerson, et al., 2011)

6. Perspectives • Context may alter not only one’s perspective but affective experience

7. Multiple Perspectives Finding the path may require a multitude of perspectives

8. Assimilation without accommodation Or At Least, Without Adequate and Accurate Accommodation Hardening of the Categories

9. Assimilation and Accommodation http://www.learningandteaching.info/learning/assimacc.htm

10. Assimilation and Accommodation • Over-assimilation without adequate accommodation may occur when information is learned but without the depth of understanding needed to engage in a way that changes practice (Alton-Lee, 2006)

11. Cognitive Errors and Decision Making • Without sufficient cognitive categories in which particular information may be filed, or • Understanding and appreciation of important differences in information is not present, then • Cognitive errors will occur and affect our quality of decision making

12. Over-Assimilation vs. Accommodation Than like this • Accommodation might look more like this

13. Hardening of the Categories “There is no graver threat to the process of discovery than that dread disease, ‘hardening of the categories’.” (attributed to Bob Miller, San Francisco artist and science educator) (image retrieved 04/01/2012 from http://isaac.exploratorium.edu/dbarker/bobmiller.html

14. Ethics and Professional Acculturation Adapted from Knapp & VandeCreek, 2009

15. Decision Making • Decision making is affected by common errors of judgment • Intuitive, automatic reasoning and decision making is heavily influenced by affective components • Rational reasoning requires more cognitive effort • Natural reliance on cognitive shortcuts

16. Decision Making: Heuristics and Algorithms • A heuristic is a problem solving strategy • This can range from an “educated guess” to “trial and error” • “Rules” for various kinds of problem solving • A heuristic can range from simple to more complex, but does not provide a definitive outcome • An algorithm is a specific set of directions that will result in a specific outcome

17. Heuristics vs. Algorithms • Cooking by taste follows a heuristic based on what the cook believes should go into how a prepared food tastes and what the outcome should be • Cooking by following a recipe is the use of an algorithm that will result in a predefined outcome assuming the recipe is followed and conditions are right

18. Decision Making • Making decisions is part of every day life and making ethical decisions is part of day-to-day practice and business in any mental health setting • Consequences may make the process of decision making a greater challenge • A decision making strategy can help to facilitate the process of making a decision and facilitate a proactive approach to address the critical issue

19. A Systematic Model for Decision Making Bush, Connell, & Denny, 2006 • Identify the problem • Consider the significance of the context and setting • Identify and use ethical and legal resources • Consider personal beliefs and values • Develop possible solutions to problem • Consider potential consequences of various solutions • Choose & implement a course of action • Assess the outcome and implement change as needed

20. A Licensing Agency Perspective Regulatory Process

21. Rules, Enforcement, and Compliance • Rules development may be in response to • Legislative directive • Request for consideration of a particular rule • Number of disciplinary actions that may indicate need for clarified limits • Regulatory disciplinary process • Disciplinary action is generally complaint driven • May be initiated by the Board

22. TSBEP – FY 2011 Cease & Desist 3% Misc 1% Sexual Misconduct 1%

23. When a Complaint is Filed • Reviewed for “reasonable cause” to believe that a violation has occurred • Most violations are resolved by an agreed order without other action being taken • If a respondent licensee wishes, they may meet with representatives of the Board at an Informal Settlement Conference • Both the respondent and complainant may present their perspectives at this meeting

24. Agreed Orders

25. Potential Areas of Ethical Challenge • Organizational Administrative Roles • Potential conflict between institutional values and professional ethical values • Adequate consent forms • Documentation • Security • Vetting of new staff and license status • Supervisory oversight • Licensed professional staff • Practicum students and interns

26. Areas of Potential Ethical Violations • Use of titles by supervisees • Appropriate representation of self and status to others • Adequacy of consent forms • Adequate coverage of relevant issues • Level of comprehensibility • Adequacy of direct face-to-face supervision • Frequency • Content • Documentation • Timely feedback to supervisee

27. Areas of Potential Ethical Violations • Breach of confidentiality • Office environment • Transmission of sound and conversation • Positioning of computer data screens or appointment books • Electronic record storage • Policies regarding handling protected information in an electronic form, e.g., adequate encryption • Report preparation and storage on personal computers and/or portable memory devices

28. Areas of Potential Ethical Violations • Breach of professional boundaries • Assignment of cases • Consideration of not only professional skill but professional maturity • Case history may raise questions regarding client-therapist match • How was determination of assignment made • Out of office therapy sessions • Policies regarding if, when, and where such sessions should take place

29. Psychologist Trainees and TSBEP Rules • Individual must have official status of trainee in order to be supervised • Trainee must be enrolled in a training program and registered in a course that requires the supervised training, i.e., a practicum course or internship • Proposed rule pending approval requires timely performance feedback to supervisees (465.2)

30. Pending Board Rule Clarification for Professional Boundaries • Stipulates that intimate involvement with significant others of a current patient/client is considered detrimental • 465.13 (b)(4) reference slide • 465.13 (d) reference slide

31. Current and Emergent Legal Issues Ethics in Context

32. Pending and Potential • Emotional-support animals on campus • Mental health and student status • Mental health and “duty to warn” • Personal ethics vs. professional values and training of mental health professionals • Data management – flash drives, personal laptops, and ‘cloud’ storage • Texas legal requirements for reporting of childhood sexual abuse

33. Texas and Mandated Reporting • August 2011, TSBEP received a request from a university department of psychology and counseling to clarify “requirements for psychologists in light of Texas Family Code, the Attorney General Opinion Letter, and our professional ethics.” • The letter expressed concern for clear understanding legal duty as it applies to “the professional ethics and duties we owe to our clients” as well as clear and accurate training of graduate students

34. Texas and Mandated Reporting • In 1995, reporting of abuse or neglect of a child in its most well known form became a mandated requirement (Texas Family Code, Subchapter B, Sec. 261.101) • In May 1997, the CSOT requested an opinion from the Office of the Attorney General • Do requirements of mandated reporting apply when “incomplete or dated” information is received from a client ?

35. Response to 1997 Request to OAG • In July 1997, the TSBEP General Counsel filed a brief with the OAG in response to the OAG requests for opinions from stakeholders • The brief concluded: “Nothing in the statute appears to provide a mental health professional with the discretion to ‘use good judgment’ in determining whether a report of child abuse is ‘too dated ‘ or too incomplete’ to justify compliance with Family Code 261.101. • If a professional has “cause to believe” a child has been abused, then obligated to comply with the reporting requirements of the statute

36. OAG’s Response to 1997 Request • In November 1997, Attorney General Dan Morales responded to the question re: “Whether Family Code section 261.101(a) permits a registered sex-offender-treatment provider discretion to report information regarding possible child abuse.” • Responded to whether the “exception” as described by the CSOT is consistent with Family Code 261.101

37. OAG’s Summary re: 1997 Request • A person who suspects that a child has been abused or neglected must report that suspicion immediately to the appropriate authorities. • The agency may not permit a licensee “to decide whether to report a suspicion where the suspicion is based on dated or incomplete information. • Not knowing child’s name or identity of caregiver is not an exception • Reporting professional who “acts in good faith….is immune from civil or criminal liability”

38. Response to Recent Request • The TSBEP responded that • It is required to abide by statutory requirements mandating reporting abuse or neglect of a child • Based on the current OAG opinion, there is no exception to reporting, it is irrelevant whether or not the child is currently being abused or if the child is now an adult • Reporting must occur, even if previously reported • Determination of the relevance of the report and further investigation is the prerogative of the authorities taking the report • Informed consent “should clearly indicate that if the client reveals to the psychologist any child abuse, regardless of whether the client is the perpetrator, the victim, or somehow simply privy to such abuse, the psychologist by law must report suspected abuse.”

39. Additional TSBEP Response • On December 2011, the agency requested an additional clarifying opinion in the context of the concerns expressed by the university psychology and counseling department letter to TSBEP • “Whether a mental health professional who is treating an adult patient must report any abuse or neglect, as those terms are defined in Chapter 261 of the Texas Family Code, that the mental health professional has cause to believe occurred during the adult patient’s childhood.”

40. Additionally, if such report is required • Are HIPAA standards violated by reporting any such childhood abuse and neglect of an adult under state law? • Does duty to report apply if perpetrator is deceased or whereabouts are unknown? • To what authority should the report of childhood abuse or neglect of an adult be directed? • Does the mental health professional have to report the abuse or neglect if the abuse or neglect has previously been reported?

41. Mental Health on Campus • Therapy dogs • U.S. DOJ (on behalf of student) vs. University of Nebraska at Kearney (filed Nov 2011) • Mental health and student status • Nott v. George Washington University (agreement 10/31/2005) • City University of New York (agreement 08/2006) Return to slide

42. Mental health and “duty” to warn • Virginia Tech shootings (2007) • Oikos University, Oakland, California shootings (April, 2012) • Personal ethics vs. civil rights and training of mental health professionals • Ward v. Eastern Michigan University (2012) • Keeton v. Anderson-Wiley, et al. (2011)

43. Data management • Report preparation and storage on personal computers and flash drives • Policies and procedures for handling of digital data necessary • “Cloud computing” – off-site data storage by third party vendors • No regulatory or legal guidance yet • No law suits • Deveraux & Gottlieb recommend caution and believe that cloud-based data storage may pose unnecessary risk at this time , “yet”

44. Proposed Rules - Pending • 465.2(f)A supervisor must document in writing, at least every three months, the supervision activities and the supervisee's performance during a practicum, internship, or period of supervised experience required for licensure and must provide this documentation to the supervisee. return

45. 465.13(b)(4) Licensees do not terminate psychological services with a client [person] in order to have a sexual relationship with that client [person]. Licensees do not terminate psychological services with a client in order to have a sexual relationship with individuals who the licensee knows to be the parents, guardians, spouses, significant others, children, or siblings of the patient. Return to slide

46. 465.13(d) A licensee may not engage in sexual harassment, sexual impropriety, or a sexual relationship with a current patient or client; a former patient or client over whom the licensee has influence due to a therapeutic relationship; students[;] or trainees; individuals who the licensee knows to be the parents, guardians, spouses, significant others, children, or siblings of current patients; or a supervisee over whom the licensee has administrative or clinical responsibility. A licensee may not engage in a sexual relationship with individuals who the licensee knows to be the parents, guardians, spouses, significant others, children, or siblings of former patients for at least two years after termination of services.Return to slide

47. Emotional Support Animals • Americans with Disabilities Act • Cannot treat individual differently simply because of a disability • Reasonable accommodations must be made if individual qualifies • State and local governments must offer services in “the most integrated setting” that allows an individual to participate as fully and independently in community life as possible • Rehabilitation Act (Section 504) • Fair Housing Act

48. Emotional Support Animals • Rehabilitation Act (Section 504) • Prevents discrimination by organizations and employers (i.e., any that receive financial assistance from any Federal department or agency) • physical or mental impairment that substantially limits one or more major life activities • “Reasonable accommodation” requirement

49. Emotional Support Animals • Fair Housing Act • Prohibits discrimination based on “a physical or mental impairment which substantially limits one or more of such person's major life activities” • Discrimination includes “refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling” Return to slide

50. Mental Heath and Student Status • When does a student’s mental health and behavior constitute sufficient risk to warrant requiring them to leave campus? • What defines which student may constitute a “direct threat?” Return to main slide