Developing a Code of Ethics in Ohio
Originally published in Forum Magazine
Originally published in Volume 23, Number 1 of the Federation Forum Magazine.
We tend to think of codes of ethics as being things that are good or not good, ethical or unethical or right or wrong. But ethics is really about the gray stuff in the middle. What is ethical today may not be considered ethical tomorrow - and even if it is considered unethical tomorrow, there may be just enough doubt in the facts to question whether the right decision is being made.
When people use surveys to conduct ethics research, they are really looking for a perception of what is good or bad. The problem with the survey is that it extracts what people felt was ethical; but all of us have our own internal code of ethics based on our own moralities and experience. We understand the baseline of professional behaviors, but internally, we may have a different view of how intently we need to interpret those behaviors. When we discuss a code of ethics with students, we are trying to lead them down a path of discovery that has already been predetermined. Actual cases are used to make a point, to drive home the message, to make clear all of that fluff of the philosopher or the theologist. Unfortunately, it doesn’t always lend itself to being very practical.
Typically, codes guide the conduct of a professional association. They establish some regulatory boundaries. They advise the public of professional standards and they serve to distinguish one profession from another. (It’s been said that a profession is distinguished from another because of its unique knowledge, unique skill set, research that adds to that body of knowledge, and its code of ethics.)
Ethics codes establish an ideological framework with which all professionals in that profession can agree at some level. It is a framework for professionals to resolve ethical dilemmas, and it provides a distinctive language that gives a professional a unique sense of belonging. Some professionals will hang the APTA code of ethics on the wall because it gives them a sense of belonging to an organization that has a sense of standards they hold near and dear, but there are other clinicians who probably don’t even remember a code of ethics. They may remember vaguely hearing something about it from college, they may remember that there are 11 principles, and they may remember it as part of a code of conduct that outlines every other one of those principles in some subdivision. Then again, perhaps they may not even realize that there is a code.
It is an issue that needs to be addressed and reinforced, and in Ohio, we are doing just that.
Generally, ethic codes are very ideological. The APTA code of ethics has some lofty expectations that are very difficult to uphold with regulation. The code is also not well understood. Some principles, though specifically spelled out, are very vague. One example is the notion of pro bono service. Certainly we have to do pro bono service, but what exactly does that mean? Does it mean that you have to provide time to a free clinic? Does it mean that you take on patient cases even though you know they are not able to pay for the service? Or does it mean that at the end of the year you write off unpaid balances and claim them as your pro bono service?
In Ohio, we found that although we had the APTA code of ethics which promoted pro bono services, we also had an administrative rule statement that prohibited the waiving of co-pays. It’s quite a dilemma - you have to uphold a code of ethics that is in direct conflict with administrative rules.
We asked our executive officer to send out an email to all jurisdictions to find out which states had a code of ethics other than the ATPA code. Three states responded - Minnesota, Nebraska and Oregon - and we reviewed their codes. We didn’t want to make our codes so restrictive that we were walled in; codes change and evolve and whenever we modify them, we have to go through the administrative rule process again. Still, our code needed to be much more specific than what we currently had.
To prepare for the work, we read several articles on the subject. One concerned a study at a 350-bed facility. An ethical question was posed to the occupational therapist, physical therapist, speech language pathologists, four physicians and four administrators. They were asked whether their code of ethics would allow them to resolve that issue and every one of them said, “I have no idea what my code of ethic says, but this is what I would do.”
To quote the article, “I never observed the subjects consort to professional code of ethics. The subjects offered such unprompted comments as, ‘I really don’t know what my profession says,’ ‘I haven’t read the codes since college,’ and when asked to recount a significant ethical dilemma that they had faced, the subjects mentioned a professional code existed but when asked what strategies they used to resolve those moral dilemmas, no one mentioned referring to that professional code.”
That situation is problematic but also enlightening. At least now we had an understanding as to why we were seeing the violations that we saw. If people realize there’s a code but don’t know what it says, it’s probably a telltale sign that they are really not practicing the way we think they should be. The few violations that we knew were probably not all that were actually occurring.
If we are learning to identify ourselves professionally in a certain way, then one would hope that people cared about what it meant to be a professional. If you care about the job and the way you are supposed to function, then a code is important. You cannot regulate morality, but laws are useful for the unmoral.
As regulators, it is disturbing to think that we are trying to impose something that nobody knows, nobody cares about and nobody remembered. By putting it into law, will we have any more success? We knew our code of ethics needed to withstand scrutiny. Anyone reviewing our guidelines would have to arrive at the same inference that the investigative committee reached in deliberating the facts. We didn’t want there to be much wiggle room for interpretation. Any code of ethics or regulations isn’t 100% foolproof until it is tested in court and it takes just one case to open the shadow of doubt. So we really struggled with some of the language that we used. We tried to be as direct as possible. We also needed to address the areas of patient abandonment, failure to transfer patient care, falsification of patient records, failure to provide care as documented and billed, inappropriate sexual conduct, and maintenance of healthy boundaries between student and PT instructors.
These are some of our conclusions and actions:
There were a few programs in Ohio where faculty members overstepped their boundaries with students and those actions brought up some heated discussion about whether it was fair to require educators to be licensed. The majority of practice acts are silent on the issue of educators maintaining a license. We believe it is time for a revision of those acts. A profession interested in public safety and in training the next generation should start with the educators. The idea behind discipline is to prevent something from happening in the future. If that “something” happens to a student, there is a potential that the student will violate the boundaries in the future. I urge you to do something to make sure that you are at least addressing the situation at some level.
Falsifying patient records and failing to provide care as documented
We have examples of non-existent patients receiving treatment and therapists who swore they treated them. This is not unique to Ohio. We tried to define ethical integrity by outlining specific things people needed to consider in their professional interactions with patients and families. Ethical conduct is about all the dos and don’ts that you should or shouldn’t be doing.
We found people who failed to be cooperative with investigations. We had people who failed to respond to notices during an audit, people who were personally served and refused to reply. They tried to usurp their professional responsibility. We also had to be certain that people were reporting information that they were supposed to be reporting. A licensed individual has a responsibility to report any organization or entity that provides or holds itself out to deliver physical therapy services.
We don’t like to wait very long with records because if we don’t have the records for our meeting in a timely fashion, it may be another six or eight weeks before the next meeting and so, cases tend to get backlogged. It actually provides the public with a positive expectation - we are not sitting back and waiting for things to happen. If PTs involved in the case are not cooperating, we now have the ability to enforce that.
Ohio doesn’t regulate practice settings, but it does have available cease and desist orders and we are not afraid to use them. In this instance of ethical integrity, our code directly correlates with the APTA code of ethics - the right to respect the dignity of the patient, the right for the patient to make decisions and the need to establish a trusting relationship and exercise sound judgment.
We also wanted to include items that made it very clear that exercising sound judgment means that you should also exercise sound judgment in business relationships so that you don’t overtly or covertly - in cash or in-kind - accept or receive or solicit from a referral source, and that you are not running people over with your automobile and tossing your card out there.
We never stated specifically that we are trying to prevent referral for profit, although I believe that was our intent at some level. By drafting the language that we did, we simply asked the licensee to exercise some judgment in a relationship because we do have some settings that appear to be borderline referral for profits. Patient care isn’t sacrificed, therapists are not complaining and don’t feel it’s an issue, but if it crosses the line, then I think we want to be able to do something about it. So we drafted something that will at least hold the licensee accountable for business arrangements.
A licensee may be disciplined for cheating or assisting others in compromising to cheat on the national physical therapy exam. We sometimes have to tell people that you can’t practice physical therapy if you don’t hold a valid license or if your license has been suspended for any reason. We move from a suspension to a revocation very quickly because if they didn’t understand that concept, we wanted to make sure they did. Incidentally, when we revoke a license, one has the opportunity to reapply within a year; but he/she must explain to the board that the action for which they were disciplined initially has been corrected.
Physical or emotional injury
In our code, we also added an item about causing or permitting another person to cause physical or emotional injury to a patient or depriving the patient of individual dignity. We actually had therapists who emotionally abused patients. I’m not really sure how that happens, especially in a caring profession, but it does.
There is, we found, a general perception that when physical therapists have office staff obtain consent for treatment, the patient has given informed consent. Patients can’t give informed consent if they don’t understand what the treatment plan is going to entail, what other options they have, or even what is proposed. They really don’t always know that they signed a consent to treat, which, by the way, only allows an evaluation. At the end of the evaluation, we need to offer a proposal, and inform the patient of alternatives available. Then, if the patient agrees with the proposal, you can say that you gave patients informed consent and they were in the agreement with the plan.
Anything else is not informed consent. Every facility should have a policy in place that says every therapist will obtain informed consent, explains the elements of informed consent and makes certain the consent is documented. Then you have a policy in place and it at least is being documented. Those who care enough to do what’s appropriate will do it and be able to respond in a manner so the court believes that they’ve done what they were supposed to do.
In the old version of our state law, we actually had a section that specifically identified the APTA code of ethics. When we were asked to redo the practice act, it was suggested that we take out any language referring to any specific code and simply say that we will adopt a code of ethics. The nice thing about that is we don’t have to open the practice act to change anything in the code. The drawback is we still have to go through the public rules hearing and hear comments, so it’s not always an immediate change. It’s never a perfect system, but it’s probably the least intensive of all of the options that we had available to us.
View Ohio's Code of Ethical Conduct, which was developed by members of the Ohio Occupational Therapy, Physical Therapy & Athletic Trainers Board. It became effective on March 20, 2008.