Ethical Issues for the Life Care Planner
According to Black’s Law Dictionary (Black, 1990), ethics is defined as (1) a set of principles of right conduct, (2) a theory or a system of moral values, or (3) the rules or standards governing the conduct of a person or members of a profession. A variation of this definition is found in Merriam-Webster’s Dictionary (2009a), which defines ethics as (1) the discipline dealing with what is good and bad and with moral duty and obligation, (2) a set of moral principles or values, (3) a theory or system of moral values, (4) the principles of conduct governing an individual or a group, or (5) a guiding philosophy.
According to at least one study (Swartz et al., 1996), ethical decision making undergirds all aspects of rehabilitation. This statement certainly holds true for the practice of life care planning as well, and this post will focus on ethics issues specific to the life care planner with suggestions for minimizing potential problems. Also included in this text is the standards-related document from the International Academy of Life Care Planners (IALCP) (see Appendix I). According to Merriam-Webster’s Dictionary (2009b), a standard is defined as (1) something established by authority, custom, or general consent as a model or example; (2) something set up and established by authority as a rule for the measure of quantity, weight, extent, value, or quality; and (3) something that applies to any definite rule, principle, or measure established by authority. As can be expected from a review of these technical definitions, the interplay of ethics and standards is somewhat difficult to separate. However, based on the definitions, ethics-related observations directly related to life care planning are as follows.
■ Right Conduct: This premise is perhaps the most understandable. Most professionals know right behavior from wrong behavior, yet many influences are exerted on the life care planner when faced with insurance referrals, client advocacy, biased information provided by an attorney, and so on (Banja, 1994). The attorney, for instance, is hired as an advocate for one side of the case or the other (i.e., plaintiff vs. defense); however, the life care planner is ethically bound to be an objective professional who develops a future care plan based on the client’s needs regardless of which side is paying the bill. It is especially relevant to clarify one’s role at the outset, which can be done in the form of providing a professional disclosure statement. Some professionals provide professional disclosure verbally and some by handing out printed information fact sheets or statements about the role and function of the life care planner and what the person with the disability can expect from an evaluation. For example, in personal injury litigation, the life care planner might be retained as a defense expert to conduct an independent evaluation, or as a plaintiff’s expert to provide life care planning opinions without any expectation of implementation. In either instance, disclosure of the life care planner’s role at the beginning of a case will help to minimize potential problems due to a lack of the client’s understanding or expectations of services provided. The Standards of Practice for Life Care Planners state that “Life Care Planners are expected to . . . adequately advise clients of the role of the Life Care Planner.” Further, the standards state, “Each client should be fully informed about the role of the Life Care Planner” (IALCP, 2006). The code of professional ethics developed by the Commission on Health Care Certification (CHCC), under its principles and associated rules section, states that “life care planners are obligated to clarify the nature of their relationship to all involved parties when providing services at the request of a third party.” “[L]ife care planners retained by third party referral sources will clearly define through written or oral means, the limits of their relationship, particularly in the areas of informed consent and legally privileged communications, to all involved individuals” (CHCC, 2007, R2.3).
■ Moral Values: The previous dilemma regarding maintaining objectivity regardless of whether the plaintiff or defense side has retained the services of a life care planner can be further influenced by the life care planner’s view of the world. For example, a life care planner retained by the plaintiff may privately hold the belief that insurance companies are thieves that deprive people of their rightful recovery and there is a need to get as much as one can for the client. Conversely, a life care planner retained by the defense may believe that plaintiff’s attorneys get rich off the unfortunate circumstances of people with injuries and too many frivolous lawsuits are filed. These biases must be held in check with extra vigilance to ensure the life care planner provides a proper and objective evaluation and conclusion.
■ Rules or Standards of the Specialty Practice: In an attempt to rectify some personal biases, industries and professions have developed agreed-upon rules or standards to govern professionals’ behavior. Within the preview of the life care planner, there are many ethics codes and licensure laws that include rules regarding personal conduct. An example is the Standards and Code of Professional Ethics presented by the CHCC, which include rules of professional conduct that are “exacting standards which provide guidance in specific circumstances” (Standards and Code of Ethics, CHCC, 2007, available at www.ichcc .org/ CHCC%20Standards%20and%20Guidelines%-20Manual%202008.pdf). Another example mentioned earlier in this post is the Standards of Practice for Life Care Planners developed by the IALCP (2006).
General Professional Duties within Health Care
Many ethics guidelines overlap with each other, and others have significant differences in detail. However, there are several concepts that appear to apply across the board. According to Banja (1994, p. 86) and Blackwell (1999), the four commonalities are as follows:
■ Autonomy: The client’s right to information and voluntary decision making.
■ Nonmaleficence: The client’s right not to be harmed.
■ Beneficence: The client will receive appropriate care or services.
■ Justice: The client’s right to receive unbiased and nonprejudicial treatment.
In accordance with these constructs, Shaw and Sawyer (2000) further divide the concepts into counseling and forensic environments. Although written for the certified rehabilitation counselor (CRC), several precepts apply to the life care planner. With regard to ethical priorities, Shaw and Sawyer (2000) assert that professionals who practice in the counseling environment emphasize autonomy, nonmaleficence, and beneficence, whereas the forensic counselor emphasizes justice. They also observe that there are many other variations in roles that can constitute challenges. In general, confidentiality does not exist in the legal case, but failure to maintain confidentiality in a counseling relationship is a clear breach of ethics. Within the legal environment, the consultant must be accountable to the jurisdiction in which the case is pending; whereas in the counseling environment, one is responsible to the client. The counseling relationship is expected to be supportive, whereas in the forensic setting the consulting relationship is evaluative in nature.
Further, based on the authors’ experiences and review of the literature, several scenarios are regularly observed. The first is associated by going outside of the area of expertise. This can take the form of offering medical opinions, life expectancy projections, or economic valuations (distinguishing between economic summaries from present value calculations) without adequate knowledge, education, or foundation. Life care planners unfamiliar with the forensic setting may be seduced into offering opinions outside their area of expertise that can damage their credibility and, in a roundabout way, damage the case. In the event of a plaintiff’s expert, this action also can cause harm to the client.
A second scenario is associated with the life care planner who develops a relationship with the attorney such that he or she becomes the hired gun. This relationship can be cultivated with
either plaintiff or defense attorneys where potential future referrals may be forthcoming. Also, some attorneys may be adept at providing biased information to the expert, or inviting the expert to company parties or dinners just to form a more friendly or social relationship rather than a professional, working relationship. This statement is not intended to suggest that a life care planner must not have a working lunch with a referral source, but that the ethical consultant should be aware of influences that may shade his or her professional opinion or give the perception of something other than a professional, nonbiased working relationship. In one case, a neuropsychologist admitted in deposition that she had invited the attorney who retained her services to her home for a lunch and swim party and that they had attended several personal social events together. In another case, a rehabilitationist compiled a plan for an injured worker during the same time frame that she was also married to the client’s attorney. A third example is the case of a rehabilitation counselor who publicly claimed he was going to “kick the defense counsel’s butt” in an upcoming trial. Although the reports and opinions by these professionals may very well have been appropriate and accurate, these statements and scenarios cast a shadow over the objectivity of the consultant’s work.
A third scenario is the potential for errors and miscommunication because of unclear expectations. This is particularly a problem for the inexperienced life care planner who may take instruction from the referral source rather than have clear boundaries about his or her role. In general, it is more effective for the life care planner to assertively outline for the referral source what he or she is or is not qualified to do. In these writers’ experience, it is better for the life care planner to clearly outline what the expectations are without relying on an attorney to direct the planner’s activity and potentially influence the life care planner’s objectivity.
Life care planners need to exercise due care by diligently reviewing case materials, seeking appropriate research and information, and following a process consistent with standards of the specialty practice that results in credible opinions and conclusions. Many consultants do not know what the established standards are (mostly because they are not members of the IALCP, are not certified in an area relative to the specialty practice, and do not attend conferences that offer life care planning topics), and therefore fail to follow the standards. It is reasonable to observe that a growing professional practice area, such as life care planning, will attract entrepreneurs who will learn through trial and error; however, this method of learning can damage the specialty practice unless effective intervention can occur, including education about accepted standards and procedures. (A wise person once said, if one learns by trial and error, they are likely to go on trial for one of their errors.)
Life care planners who are new to the specialty practice need to learn the specialty area (aka, literacy). Unfortunately, many beginning care planners are seriously deficient in this area. There is a specialized methodology, vocabulary, and knowledge base that must be learned and understood in order to be an effective life care planner. Also, different jurisdictions have different rules with regard to the life care plan. For example, in forensic and workers’ compensation areas, differences exist between state laws and regulations as well as between state and federal rules of evidence, and it behooves the life care planner to be cognizant of the differences within the various jurisdictions in which he or she provides services. A case that the authors reviewed involved a life care plan developed as a result of a breach of contract lawsuit. Upon review of the plan and consultation with the attorney, it became apparent that the life care planner was not aware of, or perhaps not familiar with, the rules specific to breach of contract law such that the plan included recommendations and costs that were not allowable under this particular jurisdiction, and this raised the question of accuracy of the life care plan and credibility of the life care planner who prepared it.
Another issue for the life care planner, even for the most experienced professional, is the potential problem with dual relationships (also related to dual roles or multiple relationships or roles). The term dual implies that the professional not only serves in his or her primary role, but also establishes a second (or multiple) role with the client that may be viewed as harmful (Cottone, 2003). Although the issue of dual relationships historically has been a common topic in the ethics literature and is specifically addressed in the Standards of Practice for Life Care Planners (IALCP, 2006, reprinted in Appendix I), more recently the term multiple relationships has gained favor and implies two or more relationships with clients that could impair professional judgment or increase the risk of exploitation (AAMFT Code of Ethics, 2001, subprinciple 1.3, as cited in Cottone, 2003). In the practice of life care planning, it may be common for the expert to develop a future care plan while also providing some case management and coordination services. Indeed, the scope of practice/applications section of the Standards of Practice for Life Care Planners states that “the life care planner … may temporarily assume a peripheral role in the management of the case” (IALCP, 2006). Further, “[T]he life care planner must take care to keep the life care planning function separate from caregiver and case manager functions” (III.A). In other situations, life care planners may use counseling skills to facilitate information gathering and reduce the client/ family’s psychological pain/anxiety when the real purpose is to obtain information to develop an expert opinion. In one example, a rehabilitation counselor proclaimed she was going to offer her services free to help an acquaintance in her divorce action because the acquaintance’s “s.o.b. husband” was (in her opinion) mistreating her friend.
Shaw and Sawyer (2000) urge the life care planner to clarify the relationship, purpose, and roles at the outset. In the literature, such disclosure is referred to as professional disclosure. Berens and Weed (2001) assert that a written professional disclosure statement signed by the client is preferred and one of the best ways to uphold the life care planner’s ethical obligation to inform clients of the process and ensure the client understands and gives consent to participate. The authors point out that professional disclosure such as this obviously applies to cases in which the life care planner has access to the client and his or her designee. In cases where the life care planner does not have client access or is serving as a consultant where no client interaction is allowed or expected, professional disclosure generally is not made or required. (See discussion at the beginning of this post regarding professional disclosure as promoted by the IALCP Standards of Practice and CHCC code of ethics.)
Example Ethical Brushes
Court rulings provide insight into ethical issues related to rehabilitation professionals providing expert testimony (Weed, 2000). For example, in Fairchild v. United States, 769 R. Supp. 964 (W.D. LA., 1991), the court awarded a sum of $150,000 instead of the $1.74 million requested because the rehabilitation plan was prepared by someone not considered an expert. The so-called expert reportedly had attended two conferences on rehabilitation counseling and had prepared only 25 life care plans. No other training or education within the field of rehabilitation counseling or life care planning had been completed.
In Elliott v. United States, 877 F. Supp. 1569 (M.D. GA., 1992), the defense expert’s opinion was disregarded because the expert had been a rehabilitation consultant for only a short time, had completed only five life care plans, and had never implemented a plan. Additionally, the care plan reportedly did not include a physician contact or a conservative view.
In Norwest Bank, N.A. and Kenneth Frick v. K-Mart Corporation, U.S. District Court, Northern District of Indiana, South Bend Division (1997), the rehabilitation expert’s opinion with regard to future care was excluded in part due to a lack of medical foundation, as well as an inability to produce evidence that the methodologies used to forecast the cost of future care were based on anything other than personal experience.
In a workers’ compensation case, Maria Teresa Palmer, guardian ad litem for J. Carmen Fuentes v. W. Brent Jackson d/b/a Jackson’s Farming Company (I.C. No. 859146, North Carolina),
the life care planner did not travel to Mexico to evaluate plaintiff’s home circumstances and was not familiar with the medical facilities which may be in the vicinity of plaintiff’s home. Therefore, specific findings could not be made with respect to renovations which may be necessary to plaintiff’s dwelling or specific medical and durable supplies and equipment. Further, while plaintiff would benefit from placement in a brain injury facility, there is insufficient evidence in the record on which any specific finding may be made of whether an appropriate facility is available for plaintiff.
However, in light of the unique contribution of the published procedures of a life care plan, the workers’ compensation commission in this case concluded that a complete, current, and comprehensive life care plan would be beneficial.
In addition to published cases, there are other examples based on deposition testimony that are not readily available to the general reader. At least two recent cases reveal life care planners who admit no previous education specific to life care planning, few or no publications related to life care planning in their libraries, and no membership in professional organizations specific to life care planning. When asked about certification, at least one of the individuals claimed she does not need to be certified as a life care planner since she has years of experience and is certified in a related field. However, further examination of her credentials revealed she achieved certification as a case manager (CCM) and rehabilitation counselor (CRC) at the time the respective certifications were initially offered. Therefore, it may be presumed the individual was actually grandfathered in (i.e., took the certification exam but did not have to pass it in order to become certified).
Other examples of deponents’ testimony include those that express claims that life care planners are only serving an administrative function where they, similar to a secretary, simply record what someone tells them (see also Weed, 2002, and Weed & Johnson, 2006, for many more examples). At the other extreme is the professional (who is not a physician) who asserts that he or she can develop a complex life care plan without consultation with medical or treating professionals (if he or she has access to them). Or a physician that develops a life care plan, including case management, nursing, vocational, and psychological opinions, without adequate corroborating foundation.
As noted in the Weed (2002) article, the competent life care planner is neither an administrative recorder nor a know-it-all. A better analogy may be a general contractor or one who knows the big picture and which questions are relevant to ask of which professionals while building the care plan from a sound foundation to a completed comprehensive structure.
Suggestions for Success: Global
In order for the life care planning specialty practice to thrive and expand, it is incumbent upon each individual life care planner to assume control and responsibility over his or her actions and to practice within the ethical boundaries of the industry. Some suggestions to enhance the life care planner’s ethical practice include the following:
■ Join a professional organization specific to life care planning that includes ethics and standards of practice (e.g., IALCP). Belonging to organizations that primarily are nursing, rehabilitation counseling, or related professions are useful but may not be helpful
for specific issues associated with providing an ethical foundation in life care planning. Professional organizations specific to life care planning also offer a process by which life care planners can be held accountable to ethics and standards within the industry.
■ Consider certification as a life care planner or become certified in an area related to life care planning. (Another option is to become a fellow of the IALCP.) Although it is a voluntary process, certification affirms that the professional has completed the requisite education, experience, and training and has passed an exam that demonstrates he or she possesses a minimum competency to provide services. Also, certification offers a process for ethics complaints. Having this process will assist the life care planner in maintaining a continuing focus on life care planning professional ethics and standards of practice specific to the industry.
■ Follow established standards of practice and ethics published by the IALCP or other organizations specific to life care planning.
■ Expand one’s knowledge base by attending conferences, summits, and specialty training specific to life care planning. Not only will the life care planner be kept current on the industry and acceptable practices (this is especially true if the consultant is not certified and has no continuing education requirements), but also leaders in the field will become part of his or her professional network.
■ Subscribe to the Journal of Life Care Planning to stay current with contemporary issues in life care planning. (Available by contacting the publisher at 706-548-8161 or www.rehabpro. org/ialcp/journal.)
■ Be active in the specialty practice. Join a committee for program planning, offer an article to the Journal or other relevant publications, or conduct or participate in research projects, for example, do something that will enhance life care planning and give back to the profession.
■ Develop a protocol for disclosing to clients the various role(s) one might assume during the life care planning process.
Suggestions for Success: Malpractice Insurance Related
The following suggestions were offered by National Professional Group, a malpractice insurance carrier, as cited in Weed et al. (2003, pp. 47—54). Although there are many overlapping topics, these are specific to avoiding ethical brushes with insurance claims.
■ Role with Account: It is very important for hiring parties to clearly define the rehabilitation professional’s role and the type of evaluation or services being requested. It is preferable that these assignments be in writing.
■ Role with Client: In cases where the consultant is hired by the insured party’s insurance carrier, professional disclosure must be made with the client and documented. The client must clearly understand the role of the consultant (e.g., to evaluate and assist the client with return to work, to case manage, or to develop a life care plan).
■ Written Documentation: Many times the individual retaining the consultant may send a cursory retention letter outlining services requested. If not, it is incumbent for the consultant to get the necessary information verbally and follow up with a written confirmation to the hiring party.
■ Scope of Service: Misunderstandings can develop over the scope of service. Thus, the more accurate the consultant’s documentation, the easier it is for a review committee or court to determine that the consultant acted appropriately.
■ Objectivity: The consultant must remain objective and unbiased in the delivery of services and shall not accept assignments if the individual who retains the consultant’s services attempts to influence the objectivity or outcome of the evaluation.
■ Contingency Fees: Consultants shall not provide services on a contingency basis to prevent the appearance that the consultant’s objectivity has been compromised at the prospect of financial gain.
■ Professional Fees: If the consultant provides trial and deposition testimony, he or she will be cross-examined about professional fees. Fees should be standard for the services provided; exorbitant fees will compromise the consultant’s credibility.
■ Communication: Proper communication at all levels is critical, and it is important for the consultant to provide a clear explanation of what should be expected and the possible outcomes. Other areas of communication include ongoing progress, internal communication, external communication, fees, and fee structure. The consultant shall not tell a client that a coworker made an error that caused the client’s injury or that the client’s problem could be worse.
■ Terminology: Professionals have their own set of technical terminology, and it is easy to forget that laypeople may not completely understand those terms. It is important for professionals to use common terminology with clients and maintain a speaking manner that ensures the client is treated respectfully and that he or she understands what is being communicated. Provide booklets and pamphlets to encourage greater understanding among clients and to encourage clients to ask questions to avoid any confusion. Remember, the better the client is educated and understands the role of the consultant, the lower the chances for lawsuits.
■ Colleague Collaboration: Quality collaboration helps detect areas of weakness in one’s practice. An outside quality assessment from another professional perspective may help the consultant to recognize procedures that could be changed to benefit service delivery and potentially protect himself from malpractice claims.
■ Continuing Education: It is important to keep abreast of new advances in technology within a particular area of specialty. Therefore, continuing education, whether required by any board or certification, is crucial.
■ Common Sense: Good common sense always is valuable in dealing with people referred for services and in maintaining good solid business practice.
■ Records: Do not alter a client’s record under any circumstances. Be careful about documentation and include the rationale for services or why in some cases a decision is made not to do something. Make sure to follow one’s own policies and procedures in every case.
■ Client Respect: Always treat clients properly and with respect. Never let the client feel he or she is unimportant or insignificant.
■ Consent: Always obtain written informed consent from the client.
■ Confidentiality: Be extraordinarily careful about confidential information. Oftentimes, rehabilitation professionals may be in an environment where unsuspecting family members or others may overhear the content of information that potentially could be damaging to the client. Be aware of and comply with HIPAA guidelines as they apply to the practice of life care planning.
In summary, the case examples described earlier in this post underscore the need to adhere to ethics and standards that are agreed upon and followed by competent life care planning professionals.
Ethics statements represent judgments about morality, what is right or wrong, good or bad, and how to deal with everyday situations. All possible situations or scenarios cannot be anticipated, and the life care planner with a solid ethics foundation will be able to approach those situations in a more ethical or correct manner, which likely will preserve his or her reputation and credibility while also minimizing the potential for ethics breaches or malpractice claims. As time passes, ethics statements seem to become more important. The Code of Professional Ethics for Rehabilitation Counselors (CRCC, 2001, and, at the time of this edition, under revision for expected release in 2010) essentially doubled in length from the previous code in an apparent continued attempt to address more issues based on a combination of ethics complaints, the evolution and growth of the rehabilitation industry, and anticipated problems. Additionally, continuing education requirements to maintain CRC certification historically were based solely on rehabilitation-related topics requirements; however, effective July 1999, standards for recertification were made stronger in the area of ethics, and now 10 clock hours of ethics continuing education are required for CRC recertification. On a related issue, professional nurses are bound to a code of professional practice, promulgated by the American Nurses Association (ANA). Similarly, certified case managers (CCM) sign an agreement to practice under the code of professional conduct published by the Commission for Case Manager Certification (Patricia McCollom, personal communication, September 6, 2002).
Life care planning professionals undergoing Daubert challenges or malpractice claims often will be held accountable to existing standards of practice regardless of whether they are certified or belong to an appropriate organization. On the other hand, if a life care planner commits an ethical violation but is not certified in a professional area related to life care planning, the certification board has no jurisdiction even if a complaint is lodged. Certainly, life care planners will face ethical dilemmas and having knowledge and awareness of the accepted and published ethics as well as a network of knowledgeable colleagues to call upon to work through problems will reduce the risk of serious error. Indeed, knowledge reduces risk and fear.
A visual image one might keep in mind with regard to ethics is if the news crew from 60 Minutes showed up at your office for an interview, would you feel comfortable with your opinions? Or, is your life care plan written so that experts from within the life care planning specialty practice will conclude that your work is reasonable and proper? Did you conduct yourself in a way that you would expect others to act toward you? If you can answer yes to these questions, perhaps many pages of ethics statements will be unnecessary.
In closing, ethics is a critical area for life care planners and one that has evolved concurrently with the evolution of life care planning itself. With the advent of electronic communications, new considerations regarding dual (or multiple) relationships, HIPAA regulations regarding client health information and confidentiality, and other contemporary events in life care planning, it is imperative for life care planners to regularly review their respective codes of ethics and standards of practice to maintain an ethical focus and remain current on ethical service delivery.