Hi, everyone. This is Fran at IHS. I want to welcome everyone to the webinar on ethics for the hearing healthcare professional. We're so glad you could be here today to learn more about ethics and the possible scenarios you may encounter in your hearing healthcare practice. This webinar is available for continuing education credit through the International Hearing Society. You can find out more about receiving continuing education credit at our website at IHSinfo.org. Your moderators for today are me, Fran Vincent, IHS Marketing Manager. And me, Carrie Peterson, IHS Education Administrator. Our expert presenter today is Doug Lewis. He is the President and Owner of Excalibur Business Consultants, LLC. Doug consults in a wide range of areas involving healthcare, business, microenterprise development, and law, while also maintaining a small law practice on the side. Doug is also General Counsel and Compliance Officer for several organizations. An active faculty member for six universities, Doug teaches a wide variety of subject matter encompassing such areas as law and ethics, business, healthcare, clinical and administrative practice, science, nutrition, sociology, and biopsychology, and medicine. He considers himself to be a lifelong adult learner, having earned his Doctor of Audiology degree, along with a Ph.D., J.D., three Master's degrees, two Bachelor's degrees, and an Associate's degree. He presently maintains professional licensure and practices in the areas of law, clinical audiology, insurance, securities analysis, and nursing home administration. Before we get started today, we have a disclaimer to review. While this presentation highlights recognized principles commonly found in the legal arena, it in no way connotes nor should be considered legal advice. Please consult with your legal counsel for specific advice regarding legal matters that may be pertinent to you. The first thing we're going to do is go over the agenda. Today we'll be covering the following topics along with Q&A within a 60-minute presentation. We're going to go over various ethical systems, including business, professional, organizational, and personal ethical standards, the global fields of law and ethics and how each area may influence practice and operations with the other, relevant laws and aspects of fraud and abuse considerations that can profoundly impact the hearing health care provider. We'll also review mock case examples and make assumptions based upon how practitioners view the impacts of law and ethics on their practice and operations. At the end, we'll move on to a Q&A session. You can send us a question for Doug at any time by entering your question in the question box on the webinar dashboard, usually located to the right or left of your webinar screen. We'll take as many as we can in the time we have available. Now I'm going to turn it over to Doug, who will guide you through today's presentation. Doug? Thank you, Fran, and thank you, Carrie, both for the opportunity to present this webinar, the initial IHS webinar, that's even more of an honor. We focus today on ethics, ethics in health care, and in particular the hearing health care. One of the things we have to look at are basically some of the buzzwords or vernacular within the ideal of ethics, because ethics and the law do intersect, and we'll be talking somewhat about that during the course of the seminar. What comprises ethics? These terms should not be unfamiliar to anybody that has dealt with any kind of ethical dilemma in the past. Morals, morality-based behavior, basically what we are indoctrinated on when we grow up as we're going through our education experiences. Values or personal values, and basically, again, these are the ideals that we hold very true to form, that we take to heart, so to speak, and again, has been ingrained through a combination of education experiences and other life experiences. Beliefs also comprise a section of ethics, what we believe in, our foundations. Customs, what we're doing on a routine basis, what we have adopted during day-to-day, month-to-month, year-to-year. Habits, doing it over and over and over again. Conduct without question, we'll talk a little bit about codes of conduct later on. It's not just enough to ingrain all of this, but we have to do it and integrate it. And finally, this all leads into a way of life. It just can't be happenstance. We have to do this continuously without even thinking about it. It must become that ingrained. A number of ethical theories out there, and I challenge you as we're going through to take a look at these and see where you might be operating out of. Let's cover them first before we do that. The first one is called deontology, and all deontology means duty-based. Basically, our ethical parameters, we consider as far as honesty, fairness, loyalty, justice, compassion, respect. Basically, we're doing what we do with our patients every day because we have a duty to do it, be it our own personal duty or one's perhaps the profession. The second attribute is teleology or consequentialism. Sometimes you've even heard utilitarianism. This is a goal-based that we're focused on the results from getting from point A to point Z. There's consequences of our actions or our decisions, and ultimately, we're trying to maximize benefit by minimizing harm. So this parameter focuses more on the consequences of our actions. A third type parameter or element would be virtue ethics. Why are we doing things? Because of integrity. It's the right thing to do. So hence, we're focusing more on the person's character and their motivation of what they do. Many times, this is defined by the community. I'm not just talking geographically or local community. This is the entire profession. So we are out there every day essentially as an agent of our profession. And finally, human nature ethics. Some people kind of smirk on this one. What it does, what we do makes us feel good. Again, this kind of got a bad rap initially. If you've ever seen the old MTV hedonism beach, basically, hey, we do something because it feels good. But many of us also in our field do it because it feels good to help that patient, to create a quality of life for them that's better than what they have. So I challenge you just for a second to kind of focus on those and figure out, do you operate out of one of those areas? Are you able to silo yourself? Or perhaps maybe you operate out of all of them just depending upon the situation or the circumstance. More often than not, most people say they operate out of all of them, again, just depending upon the circumstance or perhaps even every action we do has a flavor of each one of those. Next thing we're going to talk a little bit about is the type of ethics. This is a little bit different from the theories. This is actually the operational types. And there are four. Personal ethics, which we'll talk about how very important that is. Professional ethics, hence our organizations, IHS being one of those. Organizational ethics. This is actually our physical organization in and of itself, our business. And finally, business ethics. This would be connoted as the industry in particular. Personal ethics. This is really the bellwether of them all. Basically those ethics, as we talked about before, that are ingrained as the result of our education and experiences, perhaps our upbringings, some of the institutions, so to speak, religious, cultural, otherwise, that we hold near and dear to our hearts. Personal ethics have considerable influence on all the other ones as well as a lot of the actions we take on a daily basis. And many times they are even more influential than the person on their own. Professional ethics. These are the professional codes of ethics. In other words, rules and principles that govern the behavior of our members of the profession. So again, this is pretty common. Most every organization has some sort of code of expected ethics, expected behavior. And again, morals and values of the profession. And this is very important, not only for the other professionals that we are essentially ostensibly agents, but frankly our patients. They expect us to uphold some conduct, some standard of expectation. Many of these professional ethics are founded in public policy. What is the result of the public is going on there. Standards of practice or codes of conduct. Again, many organizations have established expected standards of practice that we should follow. We're in basically codes of conduct, what are expected of us. Once again, it's based upon a system of codes or morals, what we're doing. Are we doing the right thing for the right reason at the right time? And if you really want to be bottom line, license and certification really need to mean something. Most of us have worked very hard to achieve that status through testing and through experience. It should be more than just a piece of wallpaper on the wall. It really needs to mean something. Without ethics, they essentially have no teeth and no meaning to the, not only the profession, but frankly our patients as well. Looking at organizational ethics, these are the management of relationships with patients and the public. And again, we're using a particular set of principles. And it's a fundamental right, and pay close attention to this. Receive particular care that is respectful, not just respectful in general, but cultural, spiritual, psychological values. And again, we're trying to preserve personal dignity, honesty, and of course the I word, integrity. Organizational ethics are codes of conduct basically with patients and the public with respect. We want to do things that basically demands respect. And how do we do that? It has to be legitimate under law. And again, we're going to get into the area where there's considerations that law. And again, we want to be careful because we can cross that fence very quickly. Must be accountable to the public. It's not just good enough to be accountable to ourselves, but we must look at how we are viewed with the public. Here's something, this appropriate disclosure of information, also known as many of us as HIPAA, and it creates some interesting situations as far as what we can disclose, what not disclose, and frankly who to disclose to. And pretty much all healthcare organizations are expected to have a written code of ethics. If you don't, I don't care if you're a one or two person operation, you really should have a written code. It doesn't have to be 500 pages long. It's just not enough to say I do everything the right way. If you're ever caught on the carpet, you need some sort of written proof that there is a standard of expectation you are going to follow, and not just from the professional, but frankly from the business itself. Business ethics, okay, this is a special branch of ethics basically. It creates a framework or set of standards. Here we go. We're following in the dark side of the law here. Look at the next words. Intended to prevent unfair competition or personal gain. We're talking personal gain above and beyond what is expected of the business. That unfair competition is a red flag, because what that implies is antitrust. Antitrust is a law. We cannot collude, okay. We cannot get together and collude against the public or anybody else. That is a legal consideration under the oversight of the Federal Trade Commission. So again, we're getting into that legal realm there. It's interesting with business ethics, because there was a famous economist by the name of Milton Friedman. Now this is not the guy that invented Monopoly. That's Milton Bradley. But Milton Friedman was a famous economist who basically once said, and take a look at this, the only business ethic or social responsibility is to maximize profit. Now take a minute and think about that. Maximizing profit. What exactly does that mean? It was obviously taken wrong. There was quite a bit of a firestorm originally when he said that. But in reality though, let's look at what maximizing profit means. Does it always equate specifically to money or finances? And I'm going to challenge you on that. Should it? The answer is no. Basically what he meant by maximizing profit was doing the very best for everything. The money will follow. Now who determines ethical behavior? Any reasonable person. This includes not only professionals but also colleagues, boards, state boards, licensing boards, agencies thereof. Patients as well. And again, patients are very important to us. It's not just enough to answer to everybody else. It's to our own people as well. Third-party payers. Third-party payers are getting into it. In fact, I just had one here recently that in order to get on their provider role, they had a code of conduct. You had to be able to show that you had a code of ethics in place on how you were going to deal with your patients. Referral sources. Anybody that's referring to us. And frankly, consumers is the bottom line. Any reasonable person determines ethical behavior. What are the consequences of not abiding by a code of ethics? Very important. Loss of professional respect. It's not just enough to have our patients respect us. But frankly, within the field. And we all know people who maybe ride a little bit below the level of acceptance. And that can be a problem. Revocation of professional memberships. This is a little more important than many people realize. If you're not looked at in favor within your community, that can be some serious ramifications. Even from marketing and other things down the road. Loss of professional autonomy. Again, we lose, we get our license revoked by our state organization, our state licensure board. We can't practice. And kind of a red flag bottom line, potential civil and criminal penalties. And again, we've kind of fallen off into the dark side, so to speak, into the legal realm. Law versus ethics. I want you to take a minute to think about this. Is defining law as far as judicial law in the courts, executive orders written by an executive or written law. And there's various levels of law, being constitutional laws, by far the overarching standard. None of the others can fall afoul of that, obviously. And it's a trickle down effect. We have federal laws, such as administrative agencies, like EPA, OSHA, and many others. State laws. Again, we have to always be very cognizant of state laws. Even local laws to some extent. There's some unique laws locally that you may have to be cognizant of that could actually influence your practice. And finally, the bottom one there. Moral law. Now, you're not going to ever go into court screaming moral law and win on its own merits. However, it's a very nice adjunct argument when there are things, people are doing things bad, they're being unethical, immoral. It's a nice side argument. And it can actually help you win a case that perhaps may not have been winnable otherwise. So let's talk about ethics. Now, I want you to think about this. Does the law drive ethics or does ethics drive the law? And what I mean by the word drive, does it influence? So take it just a few seconds and think of this. Does the law drive or influence ethical decisions or ethical beliefs or does ethics drive the law? Once upon a time as our country was evolving and through the many things we've done over the years, I would argue the law drove ethics. In other words, if it was legal, hence it had to be ethical. However, obviously, we know that's not necessarily true in today's world. We just go back through history. Things like slavery, women's right to vote, among other things. We thought, wait a minute, this isn't right. So what did we do? There was enough of a groundswell. We changed our minds and we created a law. So today I would argue that ethics drives the law. If we decide that there's something that's not quite right and there's enough of a groundswell saying, no, this isn't right, what do we do? We create a law. Great examples recently, HIPAA, GINA, Genetic Information Non-Discrimination Act, among others. We thought that was a practice that was unethical, but people were doing it, so what did we do? We made it illegal. I would argue, does each influence the other or change depending upon the circumstances? Are they ever static or are they ever changing? Obviously, I think we just answered that one. They are constantly changing. It is a fluid environment. Everyone functions in what he or she perceives to be in our best interest, and we all know that. However, do we really have to tell someone that something is illegal or unethical? In a perfect utopian world, probably not. But in reality, we know differently. There are some people that need to be coaxed along, and frankly, sometimes they need a kick in the backside to comply. In other words, everybody doesn't act the way you do. Let's look at fraud and abuse, and this has really crept into the ethics area. These are legal parameters, but they do have an ethical crossover. The first one, basically, we're going to look at the different laws here. We have state licensing laws, which we're all familiar with based upon the state where we practice. There's old HIPAA. False Claims Act, which I'll talk about in a minute, and this one should raise the fur on the back of your neck. Anti-kickback statutes. Both federal and state. The federal started it, but the state created their own as well. Stark law, which most people say, well, that's just a position. That doesn't involve me. Well, not necessarily. Let's look at False Claims Act. And this is a concern. Basically, what a false claim is, is submitting a false claim for any federally funded program for reimbursement. We've got a list here in a minute. We're going to go over that. I think it would be a little bit eye opening for some people. So in other words, if we're expecting to get third party reimbursement from anybody that has a piece of the pie federal government, we have to follow their rules. And this is what the scary thing is. There's no intent to deceive required. And otherwise, a mistake could be a false claim. This goes way back to the middle 1860s with the Civil War, when we had individuals selling worthless or useless stuff back to the Union Army for money. Well, if we're doing worthless service and billing for it to the federal government, we are filing a false claim. Civil and criminal penalties potential. Another one of those sister laws is the Anti-Kickback Statute. What it is, basically, this is a criminal offense, in other words, a felony, punishable by imprisonment, to offer any remuneration for inducing a referral that is covered by a federally funded program. In other words, getting something in return. Once upon a time, the federal government had to show there was an intent by you to deceive them. So about a year ago, that's no longer true. It's on equal status as the False Claim Act. So basically, a mistake could kick you into this. Not just federal, but many states have a state-level laws as well. So next, what is remuneration? This has always been an area of interest. Anything of perceived value. Certainly money, which we all know. But could it be trips? Yeah, it could be. Products, perhaps preferential financing above and beyond. Certain business programs and marketing and equipment. I'm not saying they're all that way. But when these incentives or enticements are offered to you or at least hinted to you, at least raise your eyebrows and think about it a minute before you just jump off that deep end and go for it. Federally funded programs. Medicare. Now, most dispensers don't have to deal with this unless you're in a multidisciplinary practice. But Medicaid. It is a state-operated funding. But it is federally matched. Hence, you have to follow federal law. TRICARE CHAMPUS, anybody dealing with active military. Vocational rehab. Some vocational rehabs, again, do have a federal component to them as well. The VA, without question, is a federally funded program. Some HMOs now have a partnership and they're receiving federal funds in some of their programs. You have to look at those as well. Private insurance are now getting involved in the act. In fact, many of the Medicare intermediaries now are being run by private insurances or overseen by it. Stark law. This is basically, once upon a time originally, a physician aspect only. Prohibits physicians and immediate family members from inferring patients to certain health services where the physician or his or her immediate family has a financial interest. Unless there are what we call sections called safe harbors. Where I see some of the potential concerns with us is when we get into some sort of a relationship with a physician, be it potential issues as far as giving them a break or incentives to refer, renting out space, and so on. Which we'll talk about here a little later. But you want to look at those things and make sure they're totally above board. Because if the physician gets in trouble, you potentially could get caught in that drag net downstream. Legal consequences. Two particular ones here. There's what's called misrepresentation to the civil tort, and there's what's called fraud and abuse, which can be civil and or criminal. Look at misrepresentation. And I want you to focus on the words, the adjectives. These are words or conduct by one person to another accounting to an assertion and not according to fact. Could be a false statement where there's an intent to deceive. There's a legitimate intent to deceive or mislead. So you've got that hearing aid that'll turn on the microwave in your car. Could that be misrepresentation? Well, let's think about that one. But the reason why I bring that up is the next area. Fraud. And again, if you hear the word fraud, this should be waking you up a little bit. And again, the hair on the back of your neck should be going up on this, because look at the words. It's an intentional deception or misrepresentation made by a person. So in other words, you know that you have deceived them, where you're going to get some authorized benefit, or they're going to get some benefit that really isn't there. So we have the word misrepresentation in there. Includes any act that constitutes fraud. Fraud is defined by either state or federal law. So it's pretty general. The reason why I want to bring that up, there's different kinds of fraud here. Again, words are conducted by misleading false allegations with the intent to deceive. Different types of fraud. There's actual fraud, which is really on its face. It's kind of, duh, it's there. Obvious tricks or deceit, where there's an intentional attempt to deceive. And then there's one we see more, constructive fraud, where there's an omission. You forgot to tell them about something. You just merely omitted that particular part of the benefit out. In other words, virtual fraud. Kind of, it looks like a duck, acts like a duck, cracks like a duck, it's a duck. Focus on these five elements. This is really important. How you can easily go from what may be an innocent misrepresentation into the serious dark world of fraud. Number one, misrepresentation. So basically, that initial misrepresentation, if you've misrepresented, you're 20% of the way to achieving fraud. The second element, knowledge. Did you know you were misrepresenting? Well, you are the licensed individual. I would think that hopefully you know your product and its capabilities well enough to know that. Number three, was there an attempt by you to obtain reliance on the patient? Well, they're there, right? They're there for your service by a licensed individual. I think that's pretty easily provable that there was an attempt to obtain reliance. Number four is pretty easy. Was it reasonable for them to rely on you? Again, you're the practitioner. I think that's pretty obvious. And five is the easy one, damages. All they have to do is prove they've been damaged in some way. Guess what, guys? We have fraud. And that's a serious concern. Abuse, on the other hand, and we're not talking physical abuse or anything like that. What abuse from the financial side is any inconsistent practice that falls below the radar, so to speak, or the accepted level of practice, clinically, financially, or otherwise? And again, in our particular area here, that's going to result in reimbursement that is unnecessary or for substandard items. It can be a repeated mistake. And I did see an issue with the coding issue a while back that there was no intent to deceive. There was no obvious fraud. But they didn't clean it up after they were kind of alerted to it. And it resulted in a rather substantial fine for Medicaid because they were improperly billing, because it was repeated over and over again. Some of these are concerns that are always out there. And I would argue that we all have probably known people that have done some of these, whether innocently or not. Falsification of medical clearance, where we can't get a hold of doctors, we'll just scribble it on ourselves. Or we'll alter test results to make it fit. Getting no medical clearance. Now, with audiologists, that could very possibly change with direct access for Medicare, where we will not need a script or a referral from a physician. Falsification of signatures on required paperwork. And I've seen some people pencil with these things. And it's kind of horrifying. Issues specifically to health care practitioners, again, more of them, if you're operating outside the scope of your practice, either defined by your license or other credential, or perhaps your code of ethics. Altering dates of service. I've seen this, especially toward the end of the year, before co-pays and deductibles and things like that. They try to get it in before the end of the year. Don't. Upcoding of services, whether it's you or your employees. And those of you that are business owners are ostensibly, under agency law, responsible for your employee's actions. Embellishing or misrepresenting product capabilities. Again, this hearing aid will let you hear everything you want to hear and get rid of what you don't. Sure. More professional issues. We've got potential conflicts of interest. One must balance the patient-consumer interest versus that of the provider. One of the interesting things I see is with gifts policies. And hopefully, your organizations have gifts policies. I get a little personally, a little queasy when there's a specific dollar amount. This is just a personal opinion, because it's actually very easy to accidentally violate that dollar amount. However, when you've got them written with a term called de minimis, basically, it's somewhat viewed as in the eyes of the beholder, because you get to set it. Again, you want to look at your various organizational code of ethics, as well as your overseeing associations, because there may be some recommendations there as well you should follow. But in commercial interests, how much do you disclose? We've seen a lot of problems here in the medical profession, where we've had these paid physicians out there becoming spokesmen for heart monitors and others. And they've gotten in a lot of trouble for it. Some of them have been sanctioned. They've been kicked off medical staffs. Some of the bigger universities now, Harvard, Yale Medical School, University of Michigan, Stanford, among others, University of Pennsylvania, they have completely eliminated their physicians and other practitioners from accepting gifts of any kind, even Mrs. Smith's brownies. So again, you've got to look at this, as far as that goes, as to what's reasonable and what's not, and what do you need to disclose. Acceptance or refusal of compensated travel expenses, perhaps registration fees, time for attending meetings and things. Manufacturers are not held up to the same level as practitioners. And as more and more of us get into the third party reimbursement area, whether we want to or not, we've got to look at these things. We could be in jeopardy, potentially, under law, whereas manufacturers are not. Pharmaceutical industry, basically, has really been cut, as far as what they can do, what the incentives they can do with physicians, among others, and hospitals. And knowing that as a former VP of the hospital, I know that all too well. Acceptance of free equipment or certain discounts, some sort of institutional support. Again, we need to look at those issues, as far as accurate reporting, who do we report to. It's not saying there's a blanket prohibition, but you really have to investigate it. If it sounds too good, usually it is too good. In our remaining time, I want to go over some case studies. And what we're going to do is, basically, put out a hypothetical. Take a few seconds to look at it. And what I want you to do is to judge it based upon these following questions. Is the transaction ethical or not, first and foremost? Second, is the transaction even legal? Let's look at some of these here. I want to use a corollary for reference. Ethical always equals legal. If it's ethical, there's no laws out there that are going to make it illegal. However, as we know, legal, just because it's legal, doesn't always mean it's ethical. And obviously, unethical practices don't always equate in a legal sanction. But in almost all cases, illegal acts equal unethical. There's a few unusual things when you talk about assisted suicide and things like that, which we're not going to obviously go into today. First case, let me think about this one. You have a hearing aid. You're extolling the virtues on how great this hearing aid is, especially the price. But amazingly, you either do not have it, you do not stock it, for whatever reason, it's unavailable. Of course, you believe that no one can leave your organization, your business, without purchasing something. So you're trying to persuade that consumer to buy a more expensive hearing aid to suit them. Are there any ethical issues or any legal issues? And as we're going through this, kind of think this in your mind. Some possible solutions. First part of that looked like a bait and switch. A bait and switch is a violation of the Federal Trade Commission. You can't bring someone else in, promise it, not have it, and then try to upsell them. That's highly illegal. That's going to be very problematic. Perhaps maybe you have a rebate system or some sort of arraign check that you can offer for the item, the service, or whatnot. That's fine. Although you have to honor it, of course. And you can still attempt to show the merit to the benefit of a higher level instrument or a higher level service, but not simply because you lacked the one that was advertised. Another hypothetical. You're the provider. You have an affiliation with a training outfit, a college, university, some sort of training program. The student trainee has not earned their credential yet. In other words, they're still in their apprenticeship or some sort of traineeship. However, you have given them business cards. They have a lab coat with the name and everything on it. And they've got a nice little title such as intern or candidate. What do you think about that? This one sometimes brings up some curious answers. Don't use the terminology intern or candidate. I think of an intern as a position in waiting. A candidate, I don't know. Whatever that is, a political candidate, who knows. But it's just not proper. They're very fuzzy and vague. And even if there's no intent to deceive, you can possibly misrepresent their capabilities. In other words, only use the appropriate credentials that have been earned. You're dispensing hearing aids. You join a buying group to obtain lower cost for the hearing aids. The invoices do reflect what was actually paid for. Can you use a buying group? The answer is yes on this, basically. Buying groups are OK. You use a manufactured recommended pricing page. And you're not actually paying the invoice. In other words, say MSRP, which is a suggested retail price. And now you're reimbursing it to third parties. Does it make any difference if you're passing the discount on or off to the consumer? What could be concerned there? Again, if you're talking to a third party, according to AAA, as we mentioned before, a buying group is not considered a violation. So if you have a violent group and there's several out there, that's A-OK. It is acceptable to negotiate a lower price. But the thing is, this is federal. We're focusing on federal payers. If you negotiate a lower price, you need to pass that on to the federal payer for reimbursement. Again, this MSRP is not a violation. I'm going to cut it. You may run amok of kickback and potentially false claim laws. Make sure that the discounts reflect on the invoice that you actually send to the federal payer. You have an opportunity to earn a trip or some sort of perk through the manufacturer because they're based upon some minimum required units you dispense. Do you take it? Do you disclose? And if you disclose, to who? Are there any conflicts of interest or potential conflicts of interest, and how do you guard against them? Just because it's always been done in the past doesn't mean it's A-OK now. And again, this is where your codes of conduct and organizational codes of ethics come into play. Just because someone else has done it, or frankly, even someone else within the organization has done it, doesn't always necessarily make it legal or ethical today. As we mentioned, this is a very fluid environment that is changing almost as many times as they change lines in a hockey game. So it's very quick, and fast, and furious. And you've got to be careful with this. There's potential unethical issues. But again, if you're participating in a federally funded program, there could be some illegalities. And again, before you jump into these contracts, cite unseen. You really need to look and investigate this. Maybe you won't even tell the suppliers you want the best prices. You can negotiate those lower costs. Don't be careful about some of these other remunerations that they are worth from vendors. And again, some of these incentives look a little odd. And if they look a little vague, and look a little too good to be true, then they're probably too good to be true. Business practices should be mutually exclusive from personal benefits. In other words, transparency. You could always pay for your own trip if it's a trip issue. You have a practice that because you're in a clinic, maybe it's an underserved area, there's limited funding, maybe you're doing community service, this kind of thing. You have a buying group or a manufacturer that offers to invoice you with single cost units, and deposit money into an account for you to purchase needed equipment, and so on. Or perhaps CEs for providers. It's great to have the latest equipment. You need to look especially at your state level if there are any anti-kickback prohibitions. Every state is different. What may be okay in one state because of a little bit of a laissez-faire attitude or hands off, there are other states in the union that are very strict and rigid as far as this kind of stuff goes. Again, you need to look very closely at it. Once again, there is not a right or wrong here, but it is just to be informed. Obviously, if it is illegal, it is unethical. Do not tie any benefit to units or services done, even if you think there is a greater good service. You are going to get more service because you get more hearing aids. You need to treat everybody on an equal footing. Again, there is no problem negotiating best prices. As long as your invoices reflect your costs. You always pay for your own CEs and equipment. Work that out. Again, the vendors are not held up to the same standard as practitioners. The bottom one here always raises some questions. I had this situation in a hospital where we had a vendor come in, solicit a nurse for a particular thing. If she would encourage a particular use of a product, they were going to put money in so she could go to a seminar. That probably was okay until she got squealed on by the rest of them. Actually, that is a considerable issue because it was a federally reimbursement that created a problem. We set up an endowment fund. You want to look at your particular state and local jurisdictions for this. What the endowment fund was, if the vendor wanted to continue to offer these things, they had to put it into a fund that was managed by us, that was very transparent, and the employees could actually lobby or basically buy to use this fund. In other words, it was opened up for everybody and not just one person preferentially. You purchase hearing aids directly from a manufacturer and you do pay a discounted price and the manufacturer's invoice reflects a single unit cost. That's basically as long as it's legitimate. So far, so good. Now, the manufacturer offers a business fund and sets aside 5% of the total sales, in other words, some sort of a fund for you to use for whatever. Again, the first part's fine, no problem. If it looks too good, you need to investigate the bottom line. Just because everybody else is doing it doesn't mean it's going to pass muster. And if it falls under one, then you could easily be caught in that trap as well. If you're not sure, request an opinion from the Office of Inspector General, OIG. I've seen many merit that may have looked a little stinky on the top, but then as a result of an OIG opinion, which costs about $250, they will look at the transaction and say, yeah, you're okay, no problem, or hey, well, this is blatantly against the law. Or if there's a middle ground, I've seen some of these where they say, yeah, it doesn't look good, however, because it's a community service and you're doing a greater good and you're really not getting a benefit above and beyond the obvious, we'll let it go. The only danger is that just because your neighbor did that and they went that extra mile and got that opinion doesn't mean it's going to apply to you. They may be fine, but you may not. So again, that's in the highest level issue where there's going to be a lot of involvement perhaps or a large program. OIG may be a potential that you may ask on, and that's going to cost you. You can always lobby to create a safe harbor. That's great and dandy, but that usually demands a groundswell from a lot of people. You have your credential. You're in private practice. Buying group or manufacturer offers to finance things. If you read it, basically 80% of their hearing aids. You make monthly payments. Your invoices reflect what you pay. One of the things with financing you've got to be careful with, again, if there's a concern or someone else brings it up about a potential impropriety or greater favor, that could possibly lead you into problems, especially on the state level. One of the ways around this, basically go through an approved association. I'm not trying to cut the vendors out. I'm just saying there could be some problems here ultimately if there's reimbursement later on down the road with the federal government. They are looking to finance their fraud and abuse areas. So as we continue to get more autonomy from the profession, this could run amok. We could end up being in a problem that we didn't even realize we had. Again, with the vendors, an exclusive relationship between the products versus the financial. Keep things separate. Never tie quotas to some implied benefit, whether it's past, present, or future. Now, the term opt out here, audiologists know this well. Audiologists cannot opt out of Medicare. So that is not even an option. So we can't just say, well, we're going to opt out. We're going to build a Medicare patient. We can't do that. Dispensers obviously don't have to deal with Medicare. But again, where I see some interesting dilemmas is in multidisciplinary practices. You're a provider for several third-party payers. They say you need to collect the copayments and deductibles, but you know you don't want to bug Mrs. Smith about going after that because they complain. Can we just waive these things and just say, let's make our life easier? I would answer the problem, you can never unilaterally waive these fees. You must make a best efforts attempt to collect them. And many times that's written in your contracts. So look at your contracts very closely. You rent out space to another practitioner, a dispenser, a physician, a physician or audiologist in particular. You pay a low fee, maybe a finder's fee, maybe a commission. Maybe you're getting them per hearing aid that they sent you, a referral. Any issues? I think most of us can figure this one out. Any payment that's tied to the number of units can be problematic and certainly a potential kickback issue, both state and federal. If the physician's involved, you could end up possibly being swept up under Stark Law as well. If you're going to rent out space, make sure you get fair market value. This dollar a month or dollar a year stuff isn't going to cut muster. And if there's any investigation, you could have a lot of trouble. An older individual comes in and gets hearing aids from you. Several weeks later, the adult child, usually from out of state, it's always that way. They want information about the transaction. They do not, and I repeat, do not have a power of attorney or legal guardian for the individual. Do you disclose this information? Why or why not? Obviously this could be a potential violation of HIPAA. If there's any kind of information, the electronic communication era, which is the newer version in 2009, there's also privacy law, Privacy Act of 1974 that could be a problem. You may even have an invasion of privacy to work against you. So if they are not part of that transaction, they do not have a duty to disclose that. And frankly, if they were the power of attorney, you should probably check that out before you actually hit the individual just so you can get your money. You're trying to save money. Man, I want to pay these outside providers to calibrate. That's just another drain from the budget, right? So we can just use the audiometer. It's okay. It will last us 10 years. We don't need to calibrate it, right? Wrong. If you are using an audiometer or other kind of recording device or diagnostic device that is not in calibration, and now you are billing the results, you potentially could be violating the False Claims Act. You're getting third-party reimbursement from a federally funded program for results from a device that is not up to speed. It's implicit certification. Furthermore, you may be getting improper results. Well, guys, that's worthless service. Getting reimbursed for something that either doesn't exist or is not correct because of the willful, even if not willful, the fact that you didn't do due diligence. We're near the end here. I always like this one. Offer pre-hearing tests or evaluations. You routinely charge some patients but not others. One of the concerns I have is that the term evaluation or test involves something comprehensive. If you're going to be doing screenings, then screen. Screen is a viable alternative as far as the name. But here's the greater problem. If you do it universally for free, you're okay. But you cannot pick and choose. You can't cherry pick. Let's bill this person because they've got insurance, but no, this other person doesn't. We'll just let them go. Absolutely not. Certainly could kick back potentially false claims as well. Bottom line in all of this is do your due diligence. Investigate your third-party payers, your Medicare and Medicaid. Make sure you understand what they need, what they expect. Make your decisions not based upon individual elements regarding areas of population. Who's covered, who's not. Reimbursement. Hey, I can get more for this one than that one. Billing and staffing requirements. Always have to look at potential liability for transactions. Marketing considerations. Be careful with some of your marketing. We've seen some very interesting, unique stuff out there that may not pass muster. Look at your state laws. State laws generally ruin these because you're licensed by your state. Some of us have licenses in multiple states and practice in multiple states. We need to be familiar with all of those laws. And obviously the ethical and legal consequences involved. Ethics and law have changed since many of us have been in the profession for a rather long time. Just because it was okay back then doesn't mean it is now, and we can't plead ignorance. Ignorance is no excuse. Financial relationships are highly regulated. They're being even more regulated and more scrutinized in today's world. Enforcement is expanding. The government is hiring new people to weed out fraud and abuse. Just because you offered something doesn't mean it's legal or ethical. So, again, scrutinize your actions in advance so that we don't fall into that trap. It is you, not the manufacturer, who is agreed to abide by a code of ethics. So your professional organizations. It may be a safe harbor, but that does not release you. There may be some other safe harbors that other individuals have been able to qualify for, but it doesn't mean you have. And in finalization, I'm just going to put up the references for this presentation. And we will send it back to Lavonia to field any questions that you might have. And I appreciate the opportunity to speak with you today. Thank you. Thank you, Doug. This is Fran, everybody. And thanks, Doug, again, for an excellent presentation. And we do have some questions. So we're going to go right to our first question, Doug. A free test is advertised. And you cannot talk to the patient. About the hearing aid. Okay. You're going to have to look at your state level. A lot of states are different on that. Because I don't know of anything directly related to the hearing aid. I don't know of any states that have a free test. Because I don't know of anything directly general oversight on that. But there are some states where it's a-okay. There are some states that I know have become rather diligent at that. I think I would have to, and I'm not trying to bypass the question, but I think you'd have to look at what your local areas have on that. There may be some blanket prohibitions within the particular areas that would prohibit that. Okay. Thank you, Doug. Okay. We have another question from James. He wants to know if you can explain more about Safe Harbor and what that is exactly. What the Safe Harbor is under federal law, and this was originally with the whole issue with the kickbacks and the Stark Law in particular. We wanted to make sure that there were certain exceptions. We have all these laws out there, but as we know there are exceptions because unique things come up. The original Safe Harbors, and I believe there's last count 27 of them, basically allow you to practice what appears to be, at least on the surface, a prohibited practice. However, because of certain exceptions, they will allow that. Now, again, these are federal protections, and they have to be essentially lobbied and approved. So you just simply going out on your own and requesting one is not going to work. They are part of federal law, and, again, they will give you some protection as far as certain transactions, but it's not going to be just an individual thing. This is going to be things that you have to lobby through your legal action committees and others with your various federal level organizations. Okay, thanks, Doug. We have another question, and this is from Marie, and she wants to know if all apprentices should be licensed first before becoming an apprentice. Well, again, I want you to really focus on your state laws. There are a lot of places that they do not require the license. In fact, in order to obtain the license, in some cases you have to have already been an apprentice. So that's a consideration. The other thing you want to look at on the state level is state level. They should have very specific language as to that. So you may be on a border state where it's A-O-K in one and not in the other, and you have to look at that very closely. So, again, I would defer to state law for that just because there may be parameters there that do not permit an apprentice. At the same thing, though, with the state, on the corollary argument with that, you already have a state license. Other than maybe going for an advanced credential, you probably wouldn't be an apprentice. Okay. Thanks, Doug. We have another question, actually, also on the apprentice or trainee title. Vanessa wants to know, on business cards for apprentices or trainees, what title should be used, and do you need to list the license number? Well, on the license number, again, I hate to be vague, but you're going to have to look at the local state requirements on that. Basically, I'm a little skeptical or a little suspect on even putting it on a business card, that if the individual is in there and they introduce themselves an apprentice or a trainee and make sure that that patient knows that they're not the final authority on things, I think you're okay. I get a little queasy when you're giving them literature with some fancy name out there because, again, it's beauty in the eye is the beholder. And if the patient or client, whatever your terminology is, feels that they have been deceived, you may be creating a problem, making a mountain perhaps out of a molehill. But nonetheless, it's going to take a lot of time and effort away from you as far as your potential legal implications and even just ethical dilemmas if you're suddenly reported to your state board. Okay. Doug, we have one more question. This is from Martin, and he wants to know, if a practitioner is aware of a code of ethics violation by another practitioner, what should he or she do? This is a very interesting scenario, and we all know we've had patients that like to talk and go back and forth and play one against the other. There's a hard and steadfast rule with this. If it was me, and I'm speaking just from me personally, I try not to get involved directly with that unless I have absolute knowledge of the problem. If it's just a hypothetical the patient has given me, I have them report it. They have the right to contact the state board. They can go through the Better Business Bureau and other types of things. If you have unquestionable knowledge of it, I think you proceed. But again, if it's just hearsay, it's just one word against the other, unless you have definitive proof you may be creating more of a problem for yourself because patients, once they get you in on that, I'm not saying all patients are bad because obviously they're not, but I've seen some few in the past that like to stir the pot when it turns out there's really nothing going on. So again, this is a due diligence thing. You have to look at do you really have facts on it. Go by what is routine within your state. Usually it involves a complaint to the state board. But again, the patient can bring that forth. Okay, great. Thank you, Doug. Well, everyone, I'm going to turn it over to Carrie now to wrap up the presentation. Carrie? First, thank you, Doug, for an excellent presentation. And thank you, everyone, for joining us today on the IHS webinar on ethics for the hearing health care professional. If you'd like to get in contact with Doug, you may email him at dlewis at xcaliburconsultants.com or visit his website at xcaliburconsultants.com. For more information about receiving a continuing education credit for this webinar, visit the IHS website at ihsinfo.org. Click on the webinar banner or find more information on the webinar banner tab under education. IHS members receive a substantial discount on CE credits. So if you're not already an IHS member, you will find more information at ihsinfo.org. Thank you again for being with us today, and we'll look forward to seeing you at the next IHS webinar.

ethics

hearing healthcare professional

ethical standards

healthcare profession

consequences of not abiding by a code of ethics

fraud and abuse considerations

ethical issues in hearing healthcare practice

ethical dilemmas

ethical and legal implications

awareness about ethics