Recently, on the Division 42  listserv, which I moderate, there was a thread about Living Social and Groupon. I referenced my former post on this issue and posed the question as to whether others believed this constituted “fee-splitting” as prohibited by our ethics code. My colleague Adam Alban, Ph.D., J.D. responded, and I thought his ideas about this were worth sharing.

Be sure to read the other great articles on Dr. Alban’s website, and if you’re in San Francisco, you won’t want to miss him presenting on Saturday, May 19th on Law, Ethics, and Charts: Every Therapist’s ‘Dirty Little Secret’. 9:30am – 12:30pm.

Dr. Alban’s post is below:

I’d like to preface this comment by saying that I do not have an opinion about whether promotions such as Living Social, Groupon, etc., are appropriate or constitute impermissible fee splitting when used by psychologists.  I do, however, think that it’s useful to think about these things as the marketplace changes and as psychologists such as ourselves feel the need to be more enterprising.

Here’s the text of 6.07- “Referrals and Fees: When psychologists pay, receive payment from, or divide fees with another professional, other than in an employer- employee relationship, the payment to each is based on the services provided (clinical, consultative, administrative, or other) and is not based on the referral itself.”

It seems to me that it’s important to remember the main purpose of 6.07, which is to make sure that referrals are made based upon clinical indications and not upon a fee.  This provision of the Ethics Code is in place to maintain the integrity of the treatment.  It’s also helpful, I think, to keep in mind that 6.07 does not prohibit fee sharing; its function is to ensure that any fee distribution is based upon services rendered.

Here’s how I would approach an arrangement like Living Social or Groupon:

1.) Determine who is making the referral:  Are patients self-referred based upon a mass email?  Or, is the website targeting individuals based upon other data?  Who decides whether the patients purchase the offer and/or visit the psychologist?  IMPORTANT: If patients decide to purchase a “deal,” is he/she aware that the psychologist’s participation in the deal is a promotion?

2.) Determine, to a reasonable extent, whether/how the partnering business maintains patient data.  Under many circumstances, the mere fact that a patient is seeing a psychologist is confidential.  However, patients who willingly choose to disclose that fact to a third party may do so of their own free will.  It’s not the psychologist’s dilemma if a patient breaches some elements of confidentiality.  But if the partnering business requires that the *psychologist* continues to provide patient data after the initial contact, the patients may need to be made aware of this in order to provide consent for this data transaction.  Patients can disclose private information on their own, or they can consent to the release of their private information.  (It’s certainly possible that many psychologists would reasonably believe that the potential intrusions disrupt the frame to such an extent that the treatment becomes irrevocably warped, but IMHO that is a theoretical judgment and not an ethical decision, per se.)  HIPAA Covered Entities may, under some circumstances, need to enter into Business Associate agreements with partner businesses if the information sharing is required (by contract) to continue.

3.) Something else to consider is whether partner businesses such as Groupon or Living Social are more like advertisers or more like business partners? Or, are they some altogether different form of business?   Recall that 6.07 provides examples of “clinical, consultative, administrative, or other” as services that are permissible bases for fee division. Is advertising an “other?” Are these types of promotions an “other?”

4.) A very real and practical concern (less an ethical concern) is that the response to these daily deal sites can be overwhelming. Be prepared for an avalanche of calls.

You can read more of Dr. Alban’s thoughts on this on his own blog. If you’re interested in hearing more from him, also know that he facilitates a monthly Law & Ethics discussion night for San Francisco Psychological Association.

Bay Area locals, I will be offering a 3 hour CE on Sunday, May 20th from 1-4pm with Santa Clara County Psychological Association.

I’d love to see you there!

Register here.

SFPA Members get member rates!

Digital and Social Media Ethics for Psychologists
May 20, 2012
1:00pm to 4:00pm. Registration at 12:30
3 CE hours

Sponsored by
Santa Clara County Psychological Association
Location-Palo Alto University
5150 El Camino, Suite 22, Bldg C
Los Altos, CA

Course Description:
The Internet and social media are offering a number of new clinical and ethical challenges for those who provide face-to-face mental health services. These challenges include extra-therapeutic contacts between therapists and their clients, questions about what distinguishes personal from professional activities online, and a lack of clearly developed policies related to our online behaviors and interactions.

This course offers an introduction to digital ethics and to various social networking sites and activities. It provides guidelines for anticipating and managing the problems that may arise for practitioners who are using these sites. Applicable ethical standards will be addressed. The instructor will incorporate vignettes and encourage discussion to address the different ways clinicians are addressing these issues.

Learning objectives:
• Describe social media and summarize several popular social media sites and services.
• Distinguish between one’s personal and professional activities on the Internet.
• Identify the ethical challenges that may arise from engaging in activities on the Internet.
• Construct a social media policy for one’s office to address potential boundary issues with clients.

Presenter’s Bio:

Keely Kolmes, Psy.D. is a licensed psychologist in private practice in San Francisco, CA. She serves as Director of Digital Communication for APA Division 42, Psychologists in Independent practice. Dr. Kolmes writes, does research, and provides consultation and training on clinical and ethical issues related to social networking and technology. Her Private Practice Social Media Policy has been frequently cited and is a recommended sample document for clinicians by the APA Insurance Trust. She has published a New York Times Op-Ed on the challenge of consumer reviews of mental health services. Her professional website is www.drkkolmes.com where she keeps her blog, Mindful Musings: www.drkkolmes.com/blog. She can also be found on Twitter as @drkkolmes

CPA is approved by the American Psychological Association to sponsor continuing education for psychologists. SCCPA maintains responsibility for this program and its content.

Ah the Internet. It gives so much to us in terms of support, connection, and the ability to obtain and absorb information.

And then, in an instant, it can also take so much away: feelings of pain, jealousy, feeling left out, or trying to interpret messages from pixels on the screen.

The Internet makes it easy to communicate without having to talk to people like some of us digital immigrants did in “the old days.” Don’t forget that the human relationships you most value do require some direct, face-to-face communication sometimes as part of their regular care and feeding.

Since so many of us are living our lives online these days, here are my six pointers for avoiding injury to yourself and others on email and social media.

1. Be careful of “heat of the moment” posting.

It’s so easy to impulsively respond to an email or a tweet or a wall posting when you’re feeling hurt or angry. But if you find yourself composing something when you’re feeling angry or shaken, try making it into a draft and giving yourself at least a 24 hour cooling period before clicking send.

If you have a trusted friend who you know to be a careful and balanced thinker or communicator, perhaps run your posting by him or her.

If you goof, and post something that maybe you shouldn’t have, you can still self-correct and delete it later. An apology may sometimes be a step towards a better interaction, as well.

2. Don’t use status updates as a passive-aggressive way to communicate something to just one person.

If you know you are really posting that tweet or status update for an audience of one, and it’s an indirect way to get something off your chest, try a direct message to the person you’re trying to to reach instead. Or better yet, send an email (or – gasp! – pick up the phone and call) and see if they are available to talk in the near future.

Don’t use vaguebooking or passive-aggressive posts to try to get attention. You may irritate people, and you may find that it doesn’t really wind up getting you what you want. Of course, private jokes or sweet messages can sometimes become a status update. But beware if you are using your twitterstream or Facebook Wall or G+ account as a way to beat around the bush.

3. Never unfollow or unfriend someone out of retaliation just because they unfollowed you.

Yes, it stings to find out that someone has stopped following your tweets or is suddenly showing up as a recommended Facebook friend when you know you were connected just a week ago.

If it’s a close relationship, you can always send a note and say you’ve noticed they stopped following you and ask why they did so. Don’t do this unless you are prepared to hear their answer.

But if you are still following them on Twitter and you like their tweets, don’t unfollow them to “get even.” Try giving it 30 days or so to see if they are still providing valuable content to you. If it’s still bugging you, and the relationship is close enough, you can ask why they took you off their Follow list.

If what follows is a “difficult conversation,” see my blog post on how to have difficult conversations.

And try those off of the Internet! Oh wait, that’s item #5!

4. Don’t obsessively Facebook, Google, or Twitter-stalk your ex (or the person your ex is now dating).

Of course, it’s tempting to find out what has happened in someone’s life when you’re no longer in it, and the Internet has made it ridiculously easy to browse photos, news, and updates on the lives of people who are no longer in our lives. In the old days (yes, this is a phrase I am now old enough to use), people might drive by an ex’s house in a moment of longing or self-loathing. But now we can just sit home in our pajamas and look at their social media profiles to find out what’s new with them.

But this has become a new form of self-injury for many people. Sometimes, it can feel like a compulsion and it can be hard to stop. If you find you are doing this, consider employing some harm-reduction strategies such as using the “block” function or imposing time periods during which you’ll stay away from the offending profiles.

Try 14 days of not looking. Then try 30 days. You may find that not looking helps you move forward and helps stabilize your mood.

If it helps, enlist a friend whom you can call when you have a weak moment. Ask your friend to help support you in choosing something healthier to do rather than checking these profiles.

Chances are good that the profile will still be there to peek at once you’ve had 30 days of sobriety from checking your ex’s profile.

5. Try to keep important and difficult conversations offline.

The online disinhibition effect can lead people to sometimes get closer online and share more than they would offline with positive effects. But it can also lead some folks to say things that are more cruel and toxic than what they would say if they were chatting face-to-face, looking into someone’s eyes and seeing how their words land. This can be problematic, if you want to process hard things in a friendship.

One of the worst things you can do is tell someone that something should happen in an offline chat, but then dump your side of the conversation into an email. That’s unfair and it only makes sense that a person would want to respond to that email.

So do both of yourselves a favor: if you think something warrants a face-to-face conversation, don’t start it over email. Send an email and say, “Let’s get together and chat, I’ve got some stuff I wanna talk to you about.” Or pick up the phone and do the same.

Unless you’ve got a proven track record with someone who also likes to process things over email, don’t assume this is the best way “to talk.”

6. Avoid inflicting FOMO on your friends (and yourself).

While it’s great to post photos and updates of all the cool and groovy things you do in your life, remember that people are going to see these updates who may feel very hurt and left out when they find out you had a big birthday bash and neglected to invite them.

Be mindful of what it means to have wide audiences who are now privy to your every social engagement and think about whether you really want to share these things with everyone or whether you want to create filters and friend groups so that you are not in inadvertently pissing off half of the folks you call your friends.

And if you’re prone to FOMO yourself, start booking up your own social calendar rather than cruising for online information of what you’re missing out on. If you’re feeling like you’re missing out on too much, it may be a sign that it’s time to work a bit harder on creating more offline activities for yourself than online ones.

For a long time, out of legal and ethical concerns, I’ve deprived myself of allowing comments on this blog. I had worries that clients might identify themselves or that people might share things in the comments that would make themselves vulnerable or which might require some action on my part or create an inadvertent clinical relationship between us.

But I’m going to begin experimenting with allowing moderated comments on some of my blog posts now and see how that goes. I plan to screen all comments before posting, not to be a heavy-handed control freak, but just to be sure that they contribute to the value of dialogue, community, and my site. Hateful, and abusive speech will not be approved.

I look forward to hearing from my readers and having conversations with you about my writing.

Thanks, as always, for checking out my site!

I’m back from SXSW, where I got rained on HARD and also got to network and socialize with some of my favorite people. My session was on the challenges raised by consumer reviews of healthcare providers. You can read the Storify story of tweets below.

Thanks to everyone who came and asked great questions!

Check out the audio from my segment of our presentation:

Audio clip: Adobe Flash Player (version 9 or above) is required to play this audio clip. Download the latest version here. You also need to have JavaScript enabled in your browser.

My slide:

You can also hear the full audio here, and view the Storify tweets below.

Tweets from SXSW session WARNING: Are Online Reviews Bad for Your Health?

Session moderated by Cindy Cohn, Legal Director of EFF. Panelists: Jeffrey Segal, CEO of Medical Justice, Dr. Keely Kolmes, SF Psychologist in private practice, and Vince Sollito, VP at Yelp.

Storified by Dr. Keely Kolmes · Mon, Mar 12 2012 14:21:29