Advisory Opinion No. 2003-9
Application Of The Code To Outside Referrals By UCONN
Mental Health Services Providers
Michael Kurland, on behalf of the University of Connecticut (UCONN) Consulting and Mental Health Services Department, has asked for an advisory opinion regarding the following situation.
The present policy of UCONN’s Counseling and Mental Health Services (CMHS) concerning referrals to staff members’ private practices is as follows: “Students who are eligible for services through CMHS are not referred to staff members’ private practices.”
This year, however, students’ eligibility for services through CMHS has changed significantly due to administrative policy decisions: 1. limiting treatment to a maximum of eight individual therapy sessions per academic year; and 2. eliminating all individual therapy, with the exception of emergencies, during the period from mid-May to mid-August. As a result, there is now a much greater need for clinicians to make outside referrals for students. At the same time, the availability of referral resources in the area remains inadequate, and no new resources have been added despite attempts to do so. However, several CMHS staff members also maintain private practices. In CMHS’s opinion, allowing students access to these services, in addition to existing community services, would be a benefit to affected students.
In order to provide this opportunity while avoiding potential conflicts of interests, CMHS has developed the following proposed procedure. In all cases, students presenting for services at CMHS will receive an initial assessment, at which the intake clinician decides whether or not they can be treated with the eight session limit. Following this assessment:
1) Cases deemed to require longer-term therapy will be reviewed by the Eligibility Committee, which may recommend either reconsideration for brief treatment at CMHS or referral to an outside therapist. Students referred out will always be given the names of several different private practitioners to choose from. The list may include a CMHS staff member; however, that staff member will then absent himself or herself from participation in the deliberations of the Eligibility Committee.
2) Cases deemed suitable for treatment within the mandated short-term therapy model will receive services at CMHS. If, at some later point in treatment, it is determined by the individual therapist that the student requires longer-term therapy, the case will be reviewed by the Eligibility Committee for a possible extension beyond the 8-session limit. Decisions to extend treatment will be made in accordance with established guidelines. If, based on criteria, an extension is not granted, referral will be made to an outside therapist. Students referred out will always be given the names of several different private practitioners to choose from. The list may include a CMHS staff member; however, the staff member will then absent himself or herself from participation in the deliberations of the Eligibility Committee.
3) In some instances, students may present initially to the private practice of a CMHS staff member rather than directly to CMHS. In all such instances, they will be informed of their possible eligibility for treatment through CMHS, so that they may make their own informed decision.
The Ethics Commission has previously considered the application of the provisions of The Code Of Ethics For Public Officials to certain other clinical referrals. Specifically, in Advisory Opinion No. 88-20, 50 CLJ 23, p. 3C (12/6/88), the Commission reviewed a request from alcohol rehabilitation counselors at the State's Boneski Treatment Center to provide aftercare to patients who had completed their treatment at the Center. In responding, the Commission stated:
When a State employee has official responsibility for, or confidential information about, the private clients he or she wishes to serve, violations of the Code are almost inevitable. Such is the case in the matter under review. As part of their official duties, rehabilitation counselors are responsible for recommending aftercare programs and for coordinating and supervising the activities of ex-patients. If a counselor recommends himself or herself as the aftercare provider, an obvious violation of the use of office provisions of subsections 1-84(a) and (c) will have occurred. If a counselor, for compensation, provides an ex-patient’s private aftercare or other treatment, the counselor will become officially responsible for monitoring and assessing effectiveness of his or her own outside work. Clearly, the counselor will have accepted outside employment which will impair independence of judgment as to official duties in violation of subsection 1-84(b). In addition, rehabilitation counselors acquire substantial confidential information in the course of their official duties. They possess such information regarding the identities, release dates, and treatment needs of their patients. It would seem virtually impossible for a counselor to seek or accept private employment treating his or her ex-patients without, at least inadvertently, making use of this confidential information in violation of subsection 1-84(c).
The situation under review is, however, distinguishable on both factual and procedural grounds. As a factual matter, the CMHS staff are not officially responsible, in their state capacities, for overseeing private care which a UCONN student may seek or receive.
As to procedure, CMHS has proposed a review committee which can avoid the referral conflict identified in the Boneski opinion. Specifically, as long as any affected clinician does not take part in a review committee decision and as long as said decisions are made by the individual’s peers and superiors, the process will comply with the Code’s conflict of interests provisions. See, Conn. Gen. Stat. §1-86(a) and Regulations of Conn. State Agencies §1-81-29. In this case, the review committee process is particularly appropriate, since the Committee Chair, who does not maintain a private practice, is the CMHS head.
Furthermore, and perhaps most significantly, the committee will not be making referrals to specific clinicians. Rather, each decision to refer will be accompanied by a list of several practitioners, both private and state affiliated, from which the student may select. See, e.g., Advisory Opinion No. 95-3, 56 CLJ 42, p. 10C (4/18/95): wherein the Commission held that a state employee with a private business may not accept referrals from co-workers at her agency; but that agency personnel could provide individuals with “…a list of all providers in the area who are available to provide the service.”
The foregoing proposed solution is, admittedly, not perfect in eliminating every possible opportunity for misuse of public position under the Ethics Code. It is, however, an acceptable framework which minimizes the potential for conflicts while, at the same time, recognizing the legitimate need to provide adequate localized care for UCONN students requiring private mental health services.
By order of the Commission,
Rosemary Giuliano
Chairperson