17.1 Contemporary Ethical Considerations in Private Practice

Welcome to the final chapter of new content in Ethical Practice in Co-Occurring Substance Use Disorder and Mental Health Counseling. In this chapter, we provide a brief overview of standard practices, terminology, and ethical dilemmas that a counselor may encounter in private practice or an upper managerial position. As this text primarily focuses on counseling ethics and professionalization, the following chapter introduces business practices in counseling rather than serving as a guide for managing private practice. Readers interested in exploring the prospect of private practice further are encouraged to read the works of Barnett et al. (2014) or Walfish et al. (2017), both of which cover this topic extensively and can be found in the references section of this chapter.

Advertising

Advertising as an independent clinician or agency presents a complex dilemma. Indeed, counselors should be paid for their services, and a degree of advertisement is also necessary to ensure that clients are aware of and can seek informed services through the practice. However, issues arise when attempting to interface these pragmatic considerations with the competitive landscape of American business. Consider the following case example of a fictitious counselor biography on a solicitation of service website:

A few important problems emerge within Ezra’s solicitation. First, they mention holding certifications in a few different modalities. However, they do not provide any context regarding these certifications’ work or whether a respectable authority accredits these credentials. Furthermore, the use of the term “certified” by professionals can be reasonably expected to be interpreted as “competence” by consumers. The second issue emerges in Ezra’s statements about their NCC and MAC credentials. No research consensus holding these credentials makes one a better practitioner, and the implication that this is the case inadvertently disparages and erodes trust in practitioners without these qualifications. Finally, Ezra’s implication that clients previously unsatisfied with services from other professionals may find success with them is potentially problematic as it implies Ezra may be more empathetic than other counselors, a claim that cannot reasonably be proven.

The ACA (2014) provides extensive guidance relating to advertising practices. Referring back to Ezra’s case, a few statutes are particularly relevant.

Advertisements promoting counseling services must truthfully represent the status and abilities of the counselor, others the counselor has worked with, and the counseling profession as a whole (ACA, 2014). In doing so, especially when discussing credentials or treatment modalities that prospective clients are likely to lack a complete understanding of, sufficient information must be provided to foster autonomy in the consumer. Operating from the perspective of aspirational ethics, advertisements for soliciting services should not be adversarial. Rather than attempting to portray the counselor as superior to others, the focus should be on attracting informed, best-fit clients for the counselor’s specialty and eliminating barriers to seeking services for clients in healthcare professional shortage areas.

While a complete overview of ethical and professional advertising strategies is beyond the scope of this text, we provide a list of general guidelines informed by the ACA (2014) and NAADAC (2021) codes below:

Payment Practices and Considerations

Pro-Bono Practice and Sliding-Scale Fees

It is no secret that transitioning from agency to private practice often brings with it a sizable increase in income. While we cannot deny the influence a more significant earning potential may exert on counselors transitioning into private practice, the corresponding increase in professional freedom brings with it an increased impetus for counselors to practice socially justly, reducing public barriers to services. Promoting social justice is one of the core values of the counseling profession (ACA, 2014). One of the ways counselors in private practice can honor this value is through the provision of sliding scale fees based on income or no-cost counseling for clients from economically disadvantaged backgrounds—a practice the ACA refers to as Pro Bono Publico (ACA, 2014). When engaging in this practice, it is also vital that clients receive the same standard of care regardless of the level of compensation the counselor receives for their services (NAADAC, 2021).

Fee-Splitting and Commissions

Fee-Splitting is the practice of a practitioner or agency referring a client to another practitioner in exchange for a percentage of the client’s fee for treatment (American Psychiatric Association, 2014). This practice is explicitly prohibited by both the ACA (2014) and NAADAC (2021) codes and similar arrangements such as commissions, kickbacks, or rebates.

NAADAC (2021) addresses fee-splitting in its code of ethics:

Similarly, the ACA (2014) discusses fee-splitting as well:

This prescription of the ethics codes calls into question some standard arrangements in private practice, such as subcontracting with the owner of a private practice for space and client referrals in exchange for a portion of fees received from clients (Welfel, 2016). The American Psychological Association ethics code has addressed this, stating that the division of fees between practitioners is acceptable provided that fees can be reasonably traced to another service (e.g., administrative fees and office rent) rather than the referral itself. Ethics scholars seem to agree with this sentiment; however, they caution that when a fee is exchanged at the same time a referral is made, counselors are wise to document (1) The exact services received in exchange for the fee paid and (2) how this referral and/or cost-sharing agreement will benefit the client (Koocher, 1994). The “reasonable person” standard should also be applied to ensure fees are commensurate with services received and client benefits are not overstated.

The American Psychological Association (2017) addresses this:

Like fee-splitting, debate is emerging regarding the common practice of mental health agencies billing for services performed by unpaid student interns. Scholarly ethical literature on this topic is scarce; however, with recent cases such as NCAA v. Alston (2021) supporting the rights of students to profit from their work and widespread strikes from student workers for improved working conditions, this is likely to become an area of further conversation. Owing to the lack of consensus and heightened controversy relating to this topic, rather than presenting an opinion of our own, we present a few discussion questions and areas of the ethics codes that may speak to this issue, depending on their interpretation. You, the reader, can be among the first to address this topic in counseling.

Consider the following questions:

• Is it an ethical obligation of licensed counselors to train in student counselors?
• The NAADAC code requires counselors to charge fees that are “fair, reasonable, and commensurate with the services provided” (NAADAC, 2021, Section I-27). Is the receipt of all fees generated from a counseling interns’ services commensurate with the costs of supervision and training?
• Does the cost of graduate training in counseling prohibit prospective students from entering the field? How might the addition of a prolonged unpaid internship impact this?
• The core counseling principle of beneficence involves promoting mental health and wellbeing for our clients as well as within society as a whole (ACA, 2014). Given the well established shortage of mental health professionals (HRSA, 2024), are financial barriers to receiving education in counseling in conflict with the principle of beneficence?

Ethical Dilemmas in Service Nonpayment

The issue of service nonpayment, when a client is unable to or refuses to compensate the counselor for their services, presents a unique challenge for the independent counselor. When service nonpayment occurs in non-human-service professions, recourse is often straightforward and concrete. The service provider either withholds the service or product until payment is received, seeks a legal claim to funds owed, or submits the debt to a collection agency. However, a counselor must balance their needs to receive financial compensation for work performed with their ethical obligations not to harm the client. As the counseling profession has increasingly interfaced with managed care organizations and the contemporary landscape of American business, the ethics codes have put forth guidelines to resolve this ethical dilemma.

Collection Agencies

The practice of forwarding an account to a collection agency, or “collections” as it may be colloquially referred to, involves sharing client information with a third-party agency that then attempts to collect any delinquent debt in exchange for a portion of fees recovered (Fontinelle, 2024). Having debt referred to a collection agency can have severe implications for clients, ranging from denials for future rental applications and loans to legal consequences and even wage garnishment (Fontinelle, 2024). Thus, this process should not be taken lightly, and its use remains ethically questionable. The ACA (2014) and NAADAC (2021) take an approach that emphasizes informed consent when considering the use of debt collection agencies, stating that:

And

Suspension of Services for Nonpayment

The suspension of counseling services in light of nonpayment remains another problematic ethical issue. Abruptly ending counseling can be countertherapeutic, and the inherent rejection of the client by the counselor based on finances may jeopardize the therapeutic relationship while also proving stigmatizing for the client. Nonetheless, counselors are people with finances themselves and often have others relying on the financial compensation they receive from the work they do. Thus, some form of ethical compromise must be reached. During informed consent procedures, counselors should include their process for amending counseling in light of the client’s inability to pay. This area may lend itself well to using sliding scale fee schedules.

The ACA code also speaks to the possibility of ambiguity with service nonpayment (e.g. When nonpayment occurs in the context of a temporary job loss), stating that:

The reduction of fees in light of “undue hardship” (ACA, 2014, Section A.10.c) represents a means of promoting beneficence for clients while also engaging in a form of pro bono practice as advocated by the ACA (2014). This being said, counselors are also wise to document, ideally through an ethical decision-making model, the circumstances or criteria used to provide reduced fees to clients to ensure favoritism or countertransference does not play a role in decision-making. Counselors must also ensure that clients receive the same standard of care regardless of compensation received (NAADAC, 2021).

A final note on the topic of services and nonpayment involves the status of client records. Under HIPAA, counselors may not withhold records from clients solely because payment has not been received for services. This also constitutes an ethics violation under the NAADAC (2021) code.

Service Interruptions and Termination

As healthcare providers, counselors have unique obligations to clients during service interruption or cessation. Interruptions to care may occur due to counselor illness, surgery, or prolonged leave for new parents. Similarly, termination of services encompasses situations ranging from a change in career path to the counselor’s death that ultimately ends counseling service provision. Across all situations that create a lapse in patient care, procedures must be in place to ensure clients continue to have timely access to their healthcare records, appropriate referral services, and alternative counseling and healthcare professionals that can provide continuity of care.

Service Interruptions

Both the ACA (2014) and NAADAC (2021) codes speak on counselor obligations during service interruptions:

In practice, these coverage arrangements resemble the provision of crisis resources to clients or assistance in scheduling follow-up appointments to ensure the client is adequately supported following the return of the counselor. In longer-term cases such as unexpected illness or parental leave, the counselor is expected to assist clients in securing timely and appropriate referrals or enlist a colleague to provide continuity of care services such as referral or short-term counseling when the counselor cannot do so themselves.

Termination of Services

When the counselor, either through intent or circumstance, terminates the provision of professional services, appropriate arrangements are expected to be made for client continuity of care. The consensus of the ethics codes (ACA, 2014; NAADAC, 2021) is that the counselor arranges for the transfer of client records to a records custodian, a counselor colleague who is responsible for client records and referrals in the event a counselor can no longer continue with services. In addition, the ACA (2014) code also advocates for the inclusion of an identified colleague who can provide continuity of care services in cases where practice termination is sudden.

A final note in this section is that counselors, particularly those in private practice, should consider creating a professional will that identifies another licensed professional who will ensure continuity of care and services should the untimely or sudden passing of the counselor occur.