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How Science Informs Ethical Decision-Making: Application to Case Studies

How Science Informs Ethical Decision-Making: Application to Case Studies
Lissa Power-deFur, PhD, CCC-SLP
January 13, 2021

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Editor's Note: This text is a transcript of the course, How Science Informs Ethical Decision-Making: Application to Case Studies, presented by Lissa Power-deFur, PhD, CCC-SLP.

Learning Outcomes

After this course, participants will be able to: 

  1. Explain an ethical decision-making model.
  2. Identify strategies to use during the ethical decision-making process to improve the outcome.
  3. Describe how to apply the ethical decision-making process, with strategies for resolution, to ethical dilemmas.

Introduction

My goal with this course is to follow up and apply some of the information I discussed in Part 1 (Course 9448). I am going to do a brief review to ensure that we're all on the same page and to refresh the memory of those who have completed Part 1.  I want to highlight that I am not a neuroscientist.  I am a speech-language pathologist and am fascinated by neuroscience. I've done a lot of reading about it over the years, and have become fascinated by what it is about the human condition that makes it hard to make some decisions and easy to make other decisions? I've integrated my reading into my work on ethical decision-making and hope you'll enjoy the case studies.

Review of Key Points

System 1 and System 2

Part 1 focused on the concept of decision-making. Daniel Kahneman is a economist who won the Nobel prize in economics for his research on decision-making, and he described System 1 and System 2. System 1 operates automatically and quickly, it's how we make our quick decisions. It involves little or no effort. It's when we realize, "Oh my goodness, it's a yellow light. I need to hit the brakes."  There is no real sense of voluntary control. It's our rapid intuitive judgments. It also can be those judgments of when you see an individual who fits a pattern of somebody you might be biased against and you draw a conclusion about them. 

I will share a personal story as an example.  I did not have much use for people that played ice hockey. I thought that game was a little violent and I didn't really care for this "beating people up".  Then I met this gentleman who plays ice hockey, not professionally, but he plays it in men's leagues, and we've now been married for 27 years.  So it's a good reminder that sometimes those rapid intuitive judgments can lead you down the wrong pathway. If I had followed my intuition of not like ice hockey players, I would not have these wonderful years of marriage to Patrick.

System 2 allocates attention to effortful mental activities. It's involved when we concentrate, and it's involved with our deliberative judgments. System 1 lacks executive censorship. It makes us more prone to cognitive bias. It's a kind of automatic approach that keeps us moving forward without pausing to recognize that we may have a bias. Bias is not necessarily a critical word, it's not saying that there's something wrong.  Biases are part of the human condition. Our colleagues in psychology have identified approximately 100 bias phenomena that influence how we make decisions and how we view the world. So we need to engage our System 2 for our best decision-making. We need to take some time, we need to process, and we need to gather information.

What Does Science Tell Us About Influences on Our Decision-Making?

What does neuroscience tell us about how we make our decisions? If we have cognitive strain or limited cognitive capacity, we're more likely to make poor decisions. We certainly do not want to buy a car at the end of a 12 hour day. We are exhausted at that point.

We can't really do two things at once. We can only do more than one thing at a time if one or all of those tasks are automatic. We can have a conversation while we drive a car.  On one occasion, I had somebody who was signing to me while he was driving the car and that made me a tad nervous. But think about what some of us do when driving in poor weather. You turn down the radio because it's too much of a distraction. You want to be able to put your full attention to the road conditions.

Additionally, because we're human, we have personal predispositions, preferences, and biases.  As speech-language pathologists, we are biased toward trying to improve the communication of the persons with whom we work. Because of our background in science, we tend to be biased toward looking at the evidence that supports a decision. Like it or not, we tend to be confident in our own knowledge. I know none of us really like to be seen as cocky, but we know stuff. We know how to make decisions and we know how to work with our clients. The danger is that sometimes we can be a little overconfident.

We are comfortable with being comfortable. MRI studies show that the brain strives to stay away from things that are uncomfortable. In our household, Patrick really loves spy movies and cop shows, and I don't care for those. I'm just not that comfortable. I start identifying with some of the characters in those shows and start feeling uncomfortable. So, my husband and I have an agreement that he watches those when I'm not around.   Again, we, as humans, tend to avoid things that are uncomfortable, and that can be one of the reasons why we avoid dealing with an ethical dilemma.

Influence of Cognitive Strain/Busy-ness

Our prefrontal cortex is less efficient and we're more likely to make poor decisions. Our choices tend to be more selfish. We tend to be there to protect ourselves. I'm sure our colleagues who study humans over time can tell us that there's a reason for that. Our judgments tend to be a little bit more superficial. An example of that is when I was judging all hockey players to be violent kind of guys. I didn't take the time to understand that was a very narrow viewpoint.

Cognitive strain can be triggered by hunger. That term "hangry" certainly captures that. Lack of sleep, a few drinks, fatigue, anxiety, poor listening conditions, or a bad mood are all times when we should not be moving forward with a decision. 

Influence of Personal Predispositions, Prejudices, and Biases

I mentioned that we have personal predispositions, prejudices, and biases, and as I said, there are over 100 different cognitive bias phenomena. The problem is that these can all generate errors in our thinking. I want to address two of them. The first one is availability bias where we focus on the most available information. For example, if I hear first from person A about an ethical issue, and then I talk to somebody else, I have what person A said to me kind of logged in my brain. Then I go speak to person B, and person B gives me some different information. What does our brain do with the fact that these two bits of information are not fitting together? If I talked with person A a while ago and person B was pretty recently, we're going to focus more on person B. Or, we might've made up our mind after listening to person A, and our opinion is formed. So as we listened to person B, we only hear what person B says that confirms the conclusion we already came to.

Kahneman has a clever concept, "What you see is all there is" (WYSIATI). This causes us to assume that what we know is all there is to know. It tends to give us higher levels of confidence than is warranted, and we fail to consider missing evidence. This last point is pretty concerning about WYSIATI. Because of our assumption that we know what we need to, we don't dive in to figure out if there is more that we should know.

From a clinician standpoint diagnostically, we clearly want to make sure that we are looking for all available evidence, but when facing something that is an ethical dilemma, sometimes we dive into a hole without realizing that we have inadvertently gone down a pathway we shouldn't have. We didn't look for missing evidence.

Influence of Our Comfort With Being Comfortable

Back to the idea of our comfort with being comfortable. The homogeneity we have in our lives leads to very limited exposure to diverse ideas. We tend to go along with the group. It's unpleasant not to agree with folks. For example, I was listening to something on the way home yesterday, and they were talking about how in a group of people, somebody may say something that is biased, and everybody's quiet. Nobody speaks up and says, "That's inappropriate." However, outside the meeting, somebody will bring it up and say how inappropriate the comment was.  We tend to go along with the group and if no one else is speaking up, then I am not going to say anything either.  It's too uncomfortable to speak up. 

Illustrative Decision-Making Process 

So with that refresher, let's take a look at the decision-making process. Here is a five-step process:

  • Step 1: Identify the ethical issue as legal and/or ethical
  • Step 2: Gather information to explain the situation
  • “Get the story straight.”
  • Who has the authority in this situation?
  • Step 3: Consult resources
  • Step 4: Brainstorm solutions to resolve and prevent
  • Consider potential positive and negative outcomes
  • Step 5: Select action

You can look at a variety of different approaches to decision-making. You might see a three-step process or a 10 step process, but they all are basically the same. I've looked at a variety that have been published in our field, and I've also looked at some other health professions.

Step 1 addresses if the ethical dilemma you're facing is a legal issue, an ethical issue, or is it both? Step 2, do we have enough information to explain the situation? Somebody mentioned something to you. Did you get the story straight? Knowing that humans tend to be biased, is it possible the person who shared that story with you was a little biased? As you're explaining the situation, it's helpful to know who has the authority. Who can make the decision? Is the person sharing the information with you, a person who has authority? Is this a person who is peripheral to it, and may not have access to all the information? Remember we have confidentiality to consider. Can you get the information or is it confidential?

Step 3 is to consult resources to help you understand the information you gathered about the situation. Step 2 is fully understanding the situation and being able to paint the full picture of what happened. While Step 3 is learning about the ethics, the legal situation, the policies and procedures that may influence that particular situation. It's learning about special education law. It's learning about billing requirements. It's learning about human resource policies.

Step 4 is brainstorming solutions to resolve and prevent. I really want to highlight the importance of focusing on resolving and preventing. We don't want to be in a situation where we're in a "gotcha" with the person. Rather, we want to fix that problem and ensure we don't have any future issues.  I'm not so naive to think that there are no ethical dilemmas for which we need a definite and swift consequence, but I would say that the majority of people are not in that category. If you have somebody in your facility who was just convicted of Medicare fraud, that is a pretty easy decision to move forward. You've got the evidence, you've got the situation, you can go to the ASHA Code of Ethics and see what the process is for making a complaint and forward that to the Board of Ethics and your licensure board. Those are rare.

Most ethical dilemmas that we face as professionals are much more gray. As we're brainstorming solutions, we need to evaluate each solution from the point of view of what is a good outcome, and what's a potentially negative outcome. We don't want to move forward quickly. We want to take the time to look for some unintended consequences and what might be a positive result.

Lastly, with Step 5, we want to select an action. You will often find a step 6, which is to evaluate.  I think it is really wise to do a little reflection later to say, "Ah, did I do that the best possible way?" Hopefully, we will not have a repeat of the same situation because you chose a solution that prevented it. But that reflection can be pretty valuable.

How Might Our Decision-Making be Influenced by Cognitive Strain, Biases, Confidence, Comfort?

Take a moment and think about any one of these four steps. Think about any one of these influences of cognitive strain, biases, confidence, and comfort. Think about how human decision-making might be influenced by one of these. For example, our biases may limit our openness to other viewpoints. If we have a bias toward a particular method of doing something, then we may not be open to another point of view.  Other examples are feeling overwhelmed by life, and not making a fair decision immediately. We may assume poorly of somebody or we may look for only things that support our position. Decision-making might be influenced by your confidence in your training and background.  My level of comfort affects my decision-making when I don't want somebody to get in trouble. Another example is if we are exhausted by cognitive strain, we might feel pressured to decide quickly.  A final example is getting tired of doing research so I just give up. We have all probably feel that way, that we know we need to do a little bit more research, either about our client or about this methodology, and sometimes we are just exhausted.

What Are Some Indicators that We Might be Influenced by Cognitive Biases or WYASIATI Thinking?

There are some indicators that neuroscientists point out to us:

  • Only attending to information that confirms your opinion
  • Blaming outside factors for problems
  • Assuming people share your opinions
  • Assuming you know all you need to about a topic
  • Reaching decisions quickly

The first indicator is only attending to information that confirms our opinion. If you look at any social media about the presidential election, you will see this happening all over the place. Second, we blame outside factors for the problems. It isn't so much that we are blaming somebody else, but when we are cognitively strained, it is really easy for us to look at all the sources of the strain as being external and not recognize that maybe I could have done this or that to improve the situation. Third, we tend to assume other people share our opinions, "Oh, he/she is an SLP at my school so I am sure they think the same thing I do."  We don't even check.

The fourth indicator is assuming you know all there is to know about the topic.  I would say that I am prey to this. I taught the articulation and phonology class in our graduate program at Longwood. Then I was at the Virginia Department of Education for many years, so I was out of clinical practice. Phonology had blossomed during the time that I was an administrator at the state agency, and I entered back into clinical practice thinking that I knew everything I needed to. Well, I certainly realized that I didn't know all there was to know about the topic and I was not excited about being the person to teach it. But, the more I dove into it, the more I loved it, and it truly is a favorite area of mine.

Finally, the fourth indicator is that we tend to reach decisions quickly, and many of you picked up on that. I encourage you that if you have a feeling of uncertainty, just follow it. The research tells us that when we are uncertain, we tend to look for more information and we tend to learn more. This anchoring bias that we have where we've made our opinion can be really devilish to overcome. We have to be purposeful about looking for information that is not just supporting the opinion that we've created.

What Steps Can You Take to Improve Your Decision-Making (Balancing Systems 1 and 2)

The key is to balance Systems 1 and 2, to balance that automatic system with the deliberative system.

  • Make decisions without cognitive strain
  • Seek diverse ideas
  • Don’t rush to judgment
  • Use checklists to ensure you have considered everything
  • Be aware of your own biases and self-reflect
  • Identify information that is/is not relevant
  • Seek to understand other points of view

We want to make decisions without cognitive strain. Seek diverse ideas. When you are looking for someone to talk to about an ethical concern, don't just talk to people who think the same way you do. I tell my students in ethics class to get on a board of advisors. I borrowed this idea from a former graduate student who got it from her role as a Resident Assistant at the university. Seek people that will help you think through the situation and not just agree with you. Now, there are days when we just need to talk to somebody who agrees with us and helps us to feel better. Those are great people to have in our lives. We want to make sure that we nurture that kind of stress reduction friendship. I'm referring to a person who may not know as much about the situation, who may be a very deliberative thinker, who might think differently than you. Seek out that person who thinks about it differently. Don't rush to judgment. 

Use checklists. Some data from the medical field suggest that physicians make better decisions when they have a checklist to ensure they consider everything. School districts are increasingly doing this as they are developing their procedures for special education. You will often see an eligibility checklist to make sure every element that's in the federal law is considered. If you've worked in special ed, you have seen that IEPs have slots for the interest of the parents, the concerns of the parents, how the child is doing in the classroom, what's the attendance, is there an English language learning situation, etc? But I think we all know it's pretty easy to just type or write in "no, no, no, no, no" so a checklist helps us to be a bit more focused.  Another example is with the airline industry. It has improved its safety by including checklists that must be used prior to any flight.

Be aware of your own biases, and self-reflect. Don't feel bad that you have a bias. It's part of the human condition. Identify information that is and is not relevant. Sometimes we go down a rabbit hole with information that really isn't important. Finally, seek to understand others' points of view. I think a lot of the challenges we face are because we don't understand why the person who disagrees with us thinks differently than we do. Trying to understand that can really improve our decision-making.

Applying Strategies to Enhance Our Decision-Making
to the Ethical Decision-Making Approach

Step 1: Is it an ethical or legal issue?

There are some things that we can do to enhance our decision-making. Is it ethical or legal? Do we assume we know the Code of Ethics, or do we review it? I did a lot of presentations after the code was updated in 2016, and I would ask some of the state associations when I was on the ASHA Board, "How many of you knew we had a new Code of Ethics in 2016?" Very few hands would raise. "How many of you read it?" Even fewer hands would go up. We assume that we're ethical and we know what the Code of Ethics is. But it's been evolving, so we want to make sure we review it.

Similarly, do we assume we know the requirements on special education, HIPAA and Medicare, or do we review them? Again, I'll tell a story of myself on Medicaid. When I was at the Virginia Department of Education, the Medicaid billing for special education services was under my unit, so I was pretty well versed in what the requirements were. During a meeting, somebody was talking about what they had to do for Medicaid, and I foolishly opened my mouth and said, "No, you don't have to do that." Well, I had not kept up with the new requirements - shame on me - because I was pretty knowledgeable. It was a good example of that, "what I see is what I assumed all there was to the situation." I didn't assume that changes had been made.

Step 2: Gather information to explain the situation

We need to gather information. What's the issue, what information is known, what do you not know? I really encourage you to focus on this question, "What is it you don't know?" It's easy to know what you know. It's not so easy to know what you don't know.

What can we do to mitigate that influence of availability bias when we're first informed? That happens so easily.  We hear something that is alarming to us, we just hold onto that, and it becomes the truth. Our opinion or our confirmation bias is often framed by that if we have a prior opinion about the situation or the individuals. If somebody tells you something about a person that you've had some concerns about, you might automatically assume, without even realizing it, that the person is guilty in this second situation. But, did you get enough information to be sure?

How are you doing at sorting out relevant and irrelevant information? That's sometimes very hard to do. You've got to look at the information, sometimes write it down, reflect upon it, and use other people to help you.

Step 3: Consult resources

Think about where you can get information that will not automatically confirm your opinion. Go to the original sources yourself. A couple of places to go that I find very valuable is the ASHA Code of Ethics, and the ethics resource page. Our Scope of Practice tells us what we can do and not do in our profession. The Practice Portal is updated constantly with great evidence-based links, as well as your state licensure policies.

Step 4: Brainstorm solutions

What is the solution you're looking for? Are your biases influencing your goal? Has somebody plucked your last nerve, and you want that person to receive his or her comeuppance? That's probably not the best approach if you're trying to resolve the situation. So, we really want to focus on resolving the situation and preventing future problems. Remember, decision-making can take time and there is rarely, if not ever, only one option.

Application to Case Studies

Case Study 1: Role of SLPA

As we go through some case studies, ponder how biases and "what we see is all there is" can adversely influence our decision-making. The first scenario is with an SLP Assistant. An SLP just moved to a new state, and is now working in a private practice. During the orientation week, this new SLP observes an SLPA conducting a language enrichment program for two-year-olds at a local early headstart, and there's no other SLP present.

Let's look at these three steps: 

  1. Is this ethical or legal?
  2. What other information should we gather about the situation?
  3. With whom or what might we consult? 

One of the first steps is to review the Code of Ethics, and you want to read that with respect to the delegation of duties to SLPAs. You also want to look at the current licensure requirements in the state that you are in, regarding the roles, responsibilities, and supervision of SLPAs. Remember that the Code of Ethics guides us as speech-language pathologists who are members of and/or certified by ASHA, but our state license guides how we practice in that state.

Like it or not, state requirements for SLPAs are not consistent across all 50 states. There is a lot of variability with some having very strict requirements, and some states having virtually nothing at all. The responsibility may lie solely on the SLP.  One of the key points I want to make about the state license is the need to ensure that you, as a person who's moved to a new state, are not bringing with you, "Well, this is how we did it in Virginia." If I've moved to Maryland, I need to read the Maryland licensure rules to make sure I know what the requirements are in Maryland.

Next, gather information. What do you know about how the SLPA is being supervised? It could be that the requirements in the state do not require on-site supervision, but are only required for one out of every two visits.  What do you know about this initiative with headstart? What do you know about how it was created? Is the SLPA working as an SLPA in this situation? Certainly, we know that people outside of our profession can do language enrichment, which brings us to the next question. What do we know about this SLPA's credentials? It could be that the person has a degree in elementary education with a focus on early childhood years and is now working as an SLPA while she is working on her prerequisite courses to get into SLP graduate school. So, find out a little bit more about that situation.

The third step is consultation. A great place to talk to folks is ASHA. If you haven't used their Action Center or contacted folks there, you'll find that they are excellent. Read what's on the Practice Portal and in the documents about an SLPA's roles and responsibilities. Talk to the folks on your own Board of Audiology and Speech-Language Pathology about SLPA roles and responsibilities. What are their early intervention requirements? In Virginia, early intervention goes through age three and we have something called a developmental specialist that is a category in Virginia.  A developmental specialist can do language enrichment so maybe the person was operating in that capacity. All of those scenarios are possibilities.

It's also possible that the person doesn't have credentials in any other field. It's possible that the SLP just said, "Go forth. Do it. I don't need to be involved," and gave no supervision or guidance. But, clearly, this becomes an example of a situation that didn't match my experience in the state where I used to live. I may ask, "What's going on here? Why isn't there an SLP?" and then the person gets alarmed. So, a lot of information needs to be gathered before making a decision of, "We have a problem."  

Case Study 2: SSD

In this case, we have a student with a speech sound disorder who the SLP identifies, but the school district does not find the child eligible for services. If you are not a school-based SLP, let me give you a little background.  To be eligible for special education, the eligibility team is the only group that can find the child eligible. The eligibility decision is based on if there is a disability. For this student, this looks like that would be the case based on the SLP's decision. Eligibility is also based on whether or not there is an adverse educational impact. We don't know anything about that from this information. As a result of that, does a child need special education? The eligibility team decided that the child didn't meet the criteria to be eligible for special education services.

I think many speech-language pathologists have faced this at one time or another, with great frustration. We know this child has a problem, but they're not being found eligible for special education. We want to look at the eligibility procedures in that state and in that district. The federal law is set up so each state develops implementation procedures. The federal government has to approve those. So, the state can have additional procedures but they cannot weaken the law in any way. It can be very frustrating as somebody moves from one state to another, and they find that the procedures vary.   The same can be true in localities. Localities may add more procedures, but they can't weaken the law.

Based on my own background, sometimes the problem is how the SLP report links to academic performance. Sometimes we forget to gather information about what goes on in the classroom and the requirement calls for an observation of experience. So, we need to be going into the classroom and seeing how the child is doing.

We should link to the common core standards or the state's individual standards that are expected of the child and point out how the speech sound disorder is related. There are definitely state standards that speak to pronunciation, knowledge of phonemes, and ability to manipulate phonemes. Are we making that information available? Part of this information step is asking ourselves, "What do I know about the people on my team? What do they know about the field of speech-language pathology? What do they know about the impact of speech and language impairment in the classroom?" Sometimes our caseload is so large or we are brand new in the building, and we find ourselves in an eligibility meeting before we have a chance to make those relationships and understand others on the team. 

In regards to step 3 for this case,  we want to read the speech and language guidelines for our state. We also want to look at the special education regulations in the area of eligibility. There might be other options for this student.  Just because the child isn't eligible for special education, he/she might be eligible for another type of service such as a 504 or Multi-Tier System of Support, which is designed to identify problems and resolve them without special education or more unique instruction.  Instead, we would work on the student's difficulties in the classroom or in a small group with more direct instruction. 

Case Study 3: Senior SLP Notices Medicaid Documentation Errors

The senior speech-language pathologist in this particular practice - and it could be anywhere, such as a school district, a skilled nursing facility, a hospital, or private practice - notices Medicaid documentation errors in dates, errors in the amount of service, and incomplete notes regarding services. Is this ethical? Is this a legal issue? What do I need to know about the situation? Who might I consult with? What might I look to for information?

First, we need to review the Code of Ethics. There are tenets and rules related to documentation that we need to be mindful of. We want to read the Medicaid requirements. This is where some biases might show up. What if that SLP came from another state. Let's say this is a person who worked in Maryland previously, and now has a job in Virginia. Medicaid requirements vary from one state to another. The documentation requirement in Maryland might not be the same as it is in Virginia. The senior SLP may have an availability or anchoring bias and has formed a certain opinion. 

We have all worked with clinicians who have varying levels of documentation skills.  Some clinicians might document a page and a half and someone else might do it in two-thirds of a page. Both of them probably meet the requirements, but they just have different philosophies. So is the senior SLP's philosophy about documentation part of the issue? We don't know. We need to gather information and review available resources. We want to carefully review the record so we can quantify the nature and the number of errors. Did it occur on one day, or is this a longstanding issue? Clearly, there are different resolutions. If it happened once, that probably just warrants a reminder to the SLP, "Could you read this? Can you verify? Would you make sure you completed it?" If the errors are found week after week after week, that's a very different issue.

Look at the training provided to the SLP.  Unfortunately, we often throw people into new situations, assume they know how to document, and don't give them any training. In the Virginia Medicaid program, there is a fabulous woman who organizes the Medicaid billing in the schools. She loves the job, has been at it for over 20 years, and offers a two-day training every year.  In addition, she will spend time on the phone or in the district with people training them because so many errors can be resolved by very, very thorough training.  Clearly, with this case, we want to be reviewing what exactly are the documentation requirements.

In regards to consultation, some folks you want to be talking to include your state Medicaid staff, the billing staff, and supervisors to make sure that you have a good understanding of what the requirements are. This is a case where perhaps the senior SLP had a bad day or was exhausting or three of her clients didn't show, or two of them had behavior issues. If it was a tough day, and she does her record review and sees these errors, it's probably not the time to get excited. She should put it down and come back the next morning when she's fresh. Do it when you have a break between clients, don't do it after the most difficult situation. Don't review it after the team meeting that makes you crazy. Look at it when you are refreshed and can investigate the nature of it. Then talk to the person, "Tell me about this record-keeping?" The clinician may say that is how she was taught to do it. Then the senior SLP can say, "Ok, we need to fix that.  We need to train you." 

Case Study 4: Evaluation of ELL Client without Available Interpreter

A monolingual SLP receives a referral for an evaluation from a child who is an English Language Learner. The district or company (again, it could be schools or private practice, a hospital) doesn't have a contracted interpreter in that child's native language. Is this an ethical issue? Is it a legal issue? What do we know about the situation? What's some consultation we might pursue? We would probably all agree that it's an ethical issue. Our Code of Ethics clearly speaks about discrimination against any person for any reason, so if we don't provide an interpreter that would be a discriminatory action.  Look at the regulations that are relevant to the place where you are working. You want to be looking at Medicare regulations, the special education regulations, and the expectation that our clients have an interpreter.

We need to gather information about the facility. Why don't we have an interpreter in this person's language? Who do you talk to, how do you find that out? Who told you that there is no interpreter? Did a colleague say, "Oh, we don't have any interpreters in that language. You know, that language is so rare." Well, don't take that at face value. There is somebody at your facility who is responsible for interpreting services. Go up the chain of command and find out who is responsible and have the conversation with that person. For example, we might have our first client who speaks Hmong at this facility, but the person whose job description it is to ensure interpreting is provided is going to make sure that they get it in Hmong. I think that's a really good example of how we get the word from somebody who isn't really the person who has the authority to make a decision. That goes back to who has the authority? While the person who secures interpreting services is taking care of that piece, you can be gathering data regarding what assessments may have been done and identifying if there are any bilingual SLPs in the area. 

There are a number of resources we can turn to in both private organizations and ASHA to help us find bilingual SLPs. What's the facility's policy? How do you handle this? Who makes the decisions? Who makes the call? What do you do if there is no interpreter? The facility should have a policy, and then if they don't, that may be a reason to initiate a conversation about getting one. 

I see a comment from a participant, saying her district had no interpreters. I would suggest that is a time to begin a conversation. That fits into step 4 of brainstorming solutions.  I would schedule a meeting with the special ed director or the person who is responsible for ensuring that we comply with the special ed requirements. I would look at the regulations in the section that addresses the need to evaluate in the child's native language and provide the information in the native language as needed. Read through the language in your state regulations regarding students for whom English is not their native language.

Then it's important to be a team player. Let them know that it looks like the district is going to be in non-compliance with the regulations, and ask what can you do to assist? You could be ready to provide some information on where to get phone interpreting. Phone interpreting is now more readily available. I guess that's a COVID silver lining where folks can do a whole lot more through technology. We don't always have to have the person in the same room with us.

Regarding consultation, again, talk to the folks that are responsible for interpreters. Understand why the place of employment does or does not have policies. On occasion, they may have had interpreters in a particular language and it didn't work out well. Not all interpreters are equal. I have worked with some interpreters who began to have a conversation with the client. I knew enough of the language to realize that those were not my words. If that happens you need to find a new interpreter.  I will say that was a very, very rare circumstance, but it did happen. There are also a number of online interpreters. Talk to your colleagues in districts and facilities that are in more diverse areas. There are definitely parts of Virginia that have far more interpreters in other places. You can also look for online interpreting services that are available or reach out to university faculty.  Usually, a variety of languages are spoken at universities.  

The biggest thing to remember is how you are approaching the issue.  Are you sure that you are gathering all the information you need? Don't let what you see be all that there is.  Don't give up simply because you don't have interpreters at your site or in all these various languages.  Find out why you don't have interpreters. What are some bad experiences that they've had? Did the person who manages that go on leave?  Are they on furlough because of financial situations?  There are a lot of reasons why there can be a problem, which assists you in solving the problem. The more you know about why you have the problem, the easier it is to solve it.

Case Study 5: Unreferred Swallowing Disorder?

In this next case, you're walking through the dining hall at work. It could be a skilled nursing facility, assisted living facility, or school district and you see a person with significant disabilities, coughing and tearing up while eating. This person is unfamiliar to you.  Is this ethical, is legal? What do you need to know to find out about the situation? What sort of consultation might you need to pursue? This is another case where you must read the Code of Ethics and relevant regulations regarding referrals.

Gather information. What do we know about this individual? Do you have access to that person's history? Maybe not. Maybe you have no reason to know anything more. Who could I talk to? Who might have more information who can tell me that we have a concern and with whom I can talk about my concern? Is there a nurse or a teacher or an SLP that I can ask, "Have you thought about a referral for feeding and swallowing services?" 

One of the challenges we frequently have in ethical situations is that we don't have the ability to gather history. You don't have the ability to find out about prior services. It could be that the person just transferred in from another facility, that the referral order is waiting for us. It could be that another SLP in the facility saw that individual and dismissed them. Those things change the nature of your conversation. Go talk to that SLP and find out why he or she dismissed them. Maybe there's been a change in that person's status.

For this case, you want to consult with the administration for referral sources. The ASHA staff is an excellent resource in terms of referrals, whether it is an educational or medical setting. They have teams for schools and teams for medical settings, so talk to those teams. Don't forget university faculty is available for you as well.

Case Study 6: Inappropriate Billing

Here is another inappropriate billing case.  At a practice where SLPs are paid by the client hours billed, an SLP notices that a colleague appears to be billing for more time than provided.  I think we would all be concerned about the ethics and the legality of this case. We definitely need to gather information before we go ahead because it is easy to have a pretty negative reaction to that situation. We have somebody who's padding the bill for her own benefit. I think that's something that we all would find distasteful, so it's really easy for our bias to come into play.  It's easy to not be as careful about gathering the information. Clearly, we're going to be looking at the Code of Ethics and Medicare/Medicaid policies to see if it's a legal or ethical issue.

To gather information, look at the billing sheets and time logs. Have a conversation with the SLP in question and maybe other SLPs in that practice. Look at the training that occurred. Billing and coding are complicated. Is it possible that this person doesn't understand the rules for billing if you don't serve for the full unit time? Was this person trained somewhere that you automatically bill to the highest level, as opposed to billing to the lower level of the amount of time? So check on that training procedure. Check to see whether that person was given bad advice. They may have been told, "Oh no, this is what everybody does." Obviously, doing what everybody does, doesn't make it right. So, in this case, a conversation is needed to explain the exact procedures.

Similar to the previous cases, consult ASHA and your state Medicaid agency. I worked at the Department of Education for a long time and fielded phone calls from the field regularly. That was part of our job as public servants working for a state agency. That's true at state Medicaid agencies as well. I know clinicians can have a bad experience. I've had this conversation so many times where I say, "Go talk to your Board of Audiology and Speech-Language Pathology." The SLP says, "We're never going to do that. They're going to do an investigation and they fine people." I'm not going to dispute that somebody had a really bad experience, but don't assume that one bad experience means it is going to be true every time. However, there are a lot of other resources if you want to shy away from one. There are other folks that can help you.

Case Study 7:  Telepractice

An SLP in a home health agency suggests to her supervisor that they offer telepractice to Medicare patients who live in an impoverished neighborhood that's a long-distance away. My first question is, why is the SLP requesting this? Wouldn't it be easy to draw the wrong conclusion of, "What's wrong with this SLP? She doesn't want to work with people who are poor?  She doesn't want to go to that part of town?" But, it might be an issue of distance or there may be something that is not apparent at all on the surface. This really reminds us to not draw a conclusion until we gather all of the information.

Case Study 8: DMC for Client with Aphasia

The family of a 60-year-old client with expressive aphasia secondary to a recent stroke is concerned about her decision-making capacity (DMC) and wish to make decisions for her.

What I really want to focus on in this case is to review the Code of Ethics. You're going to review the information that your facility has on how to handle requests for decision-making capacity changes. Every healthcare facility is very clear about how this is handled within their facility. This is not part of our scope of practice.  The staff in the facility who generally has that expertise, in my experience, are medical social workers. It can also be other folks, such as RNs.

Gathering information about the situation. Two important questions: Why is a family asking and what is the family's understanding of aphasia and the prognosis? Are they asking for this 24 hours after the stroke? Are they asking for it 24 months after the stroke? What are the concerns they have? This is a wonderful opportunity to fully understand why the request is being made. All of us would have thought about that. We know that it's a time of grief.  This is one of those things where we probably shouldn't be making the decision. Maybe the family is feeling pressured that they need to move forward and make a decision right away.

I would definitely involve other folks in the facility such as the social worker. Look at your facility policies and procedures, and if you are brand new at this and need some assistance in understanding DMC from an SLP's perspective, the ASHA staff in the healthcare unit can be great. 

Conclusion

I want to end with one last quote, "There are known knowns; there are things we know we know. We also know there are known unknowns; that is to say, we know there are some things we do not know.  But there are also unknown unknowns—the ones we don't know we don't know." So, as you are facing ethical dilemmas, I encourage you to look for "what the unknown unknowns" are out there. 

Questions and Answers

I came across a situation in July where SLPs were misrepresented by a large news media source. There was a headline story about medical students that were asked by their medical school supervisor/professor, to help out with his son's speech therapy, since he didn't have access to it during the shutdown. The media praised the medical student who used YouTube videos to learn how to provide artic therapy, and how the child improved from this "therapy". I thought it was a total misrepresentation of the importance of our field, essentially telling the public that anyone can provide speech therapy. Do you find this to be an ethical or legal issue, and would you find it necessary to address the issue?

I'm not sure that I know enough about the law related to journalism, to comment on ethics and the law. But that would be an area where I would consult with one of my university colleagues who teaches in the area of journalism, and raise the situation with him and follow some of his guidance. Yes, I would do something about it. I think it's misrepresenting our profession. I would hope it is from an ill-informed physician, an ill-informed medical student, and an ill-informed news reporter. I think that we know news reporters, in general, have good intentions but sometimes they have deadlines and don't gather enough information. My response would be to consult with somebody who knows more about the ethics and legal responsibilities in the news media, and then make a decision based on the advice I would get from my colleague.

I have tested students using an interpreter who rewords the stimulus item, making it possibly easier for the student. Do you have any comments on that?

I certainly do. That would be an ethical issue because you have an issue with validity. It would be an issue in terms of the standardization of the assessment. In terms of how to handle that. Use what I've just talked about. I would ask the interpreter why she's doing that to make sure that the interpreter has a good understanding of his or her role. Interpreters do have ethical standards to adhere to. Sometimes you can't find folks that have that background. I think that's also a reminder about how to prevent the problem. Look to sources that are in multiple places. I found them on ASHA, on the National Institute of Health, on CDC sites, that tell you how to use interpreters and speak to the importance of meeting with the interpreter in advance to go over roles and responsibilities.

References

American Speech-Language-Hearing Association. (n.d.)  A ten-step process for resolving ethical issues.

American Speech-Language-Hearing Association. (2016). Code of Ethics.

Bhatti, A. (2018). Cognitive bias in clinical practice – nurturing healthy skepticism among medical students. Advances in medical education and practice. 2018:9 235-237.

Cherry, K. (2020). What is cognitive bias? Verywellmind.  Retrieved from https://www.verywellmind.com/what-is-a-cognitive-bias-2794963

Cohn, E.R., & Cason, J. (2019). Ethical considerations for client-centered telepractice. Perspectives of ASHA Special Interest Groups. (4) 704-711.

Kahneman, D. (2011).  Thinking, fast and slow.  NY:  Farrar, Straus and Giroux.

Korteling, J.E., Brouwer, A-M, &  Toet, A. (2018). A neural network framework for cognitive bias. Frontiers in psychology. 9:1-12.

Power-deFur, L. (2020). What do I do now?  Resolving school-based ethical challenges. Perspectives of ASHA Special Interest Groups. (5) 282-289.

Wagner, L.C.B. (2018). Ethical framework for supporting medical decision-making for persons with aphasia. Perspectives of ASHA Special Interest Groups. (2) 80-86.

Citation 

Power-deFur, L. (2021). How Science Informs Ethical Decision-Making: Application to Case Studies. SpeechPathology.com. Article 20421. Available from www.speechpathology.com

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lissa power defur

Lissa Power-deFur, PhD, CCC-SLP

Lissa Power-deFur, PhD, CCC-SLP is Professor of Communication Sciences and Disorders and Interim Dean at Longwood University, where she has taught the course “Ethics and Professional Issues” since the program’s creation. She has served as a member of the ASHA Board of Ethics and on the ASHA Board of Directors as Vice President of Standards and Ethics in Speech-Language Pathology (2014-16). She has published and presented on various ethical topics.



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