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Conflict-Free Choice Counseling

In celebration of the 25th anniversary of the passage of the Americans with Disabilities Act (ADA) into law, we explore an important issue to individuals with disabilities – the need for conflict-free choice counseling. Conflict-free choice counseling is very relevant not only when individuals are choosing health plans in Medicaid and in the Exchanges, but also for when they receive referrals to other health-related services. It is a vital step in helping, protecting, and empowering vulnerable populations.

Person-Centered Planning and Support

Central to the tenets of the ADA is the concept of person-centered planning. This is an acknowledgement that individuals are in the best position to know what they need to achieve their goals, but also recognizing that they may need in-person assistance from a conflict-free resource to make a fully informed choice.

Individuals who need help with daily activities, such as personal care services or chore services (part of an array of long-term services and supports), often require assistance from an independent source. This source has no financial interest in the choice of provider and can provide guidance in navigating the complex delivery system. There are many questions that the individual may ask during the process: What types of services are available to me?  Who will provide these services?  Where can I find these services?  Many decisions need to be made, and getting those answers can be overwhelming to individuals, as well as their family members and other caregivers.

The intention of person-centered planning and support becomes violated if the education/referral source has a financial interest in any outcome of the process, outside of the outcome that the individual needs and prefers. Today, an unbiased and conflict-free resource is critical to ensure individuals get the right set of services from the right set of providers to meet their needs and preferences – in a person-centered way.

Understanding Conflict of Interest

Conflict of interest is commonly defined as a real (or perceived) incompatibility between someone’s private interests and his or her public or fiduciary duties. In the context of supporting individuals with disabilities to make informed choices, conflict may arise when the service providers who provide education or make referrals also provide the services the individual might need, or could financially benefit from a referral to a particular entity.

An organization that provides services on behalf of the government must exhibit a high level of credibility, an unbiased commitment to the objectives of the public program, and clear independence both in fact and appearance. These service providers must leave no doubt as to their independence in the mind of the general public and avoid any activities or relationships that even suggest or imply a possible lack of independence. A conflict of interest arises when a service provider or its affiliates1 have connections to entities whose interests may conflict or be biased relative to the objectives of the program. This includes having direct or material indirect financial interests with such entities.

The advice, education, and referrals by these professionals may be motivated, in part or in whole, by the financial incentives to steer the individual toward the agency with which they work. This violates a central tenet of a person-centered system in which the needs and preferences of the individuals should guide the options for services presented to them.

There is enormous complexity to resolving the issue of conflict. As more and more long-term services and supports are delivered through managed care organizations, the bright line can be blurry between those who provide advice, develop care plans, or make referrals, and those who provide services. It is more important to use independent and conflict-free resources to help individuals understand their choices.

Conflict-Free Resources

There are many state-funded and community-based resources, including private entities, that are conflict-free sources of education and referrals. As a matter of law and regulation, their primary goal must be to support individuals in making informed choices about their care options in order to prevent institutional placement as the default option. The key characteristic these entities share is that they stand apart from the organizations that deliver or finance direct services. This allows these entities to provide objective information and guidance to individuals as they make decisions about the services they may require to improve their health and quality of life. Adopting a common definition of conflict-free education, referral, and choice counseling that limits its provision to only those sources that do not have a direct or material indirect relationship facilitates the achievement of person-centered planning.

1 Employees, directors, controlling entities.


 

Lisa Shugarman, PhD, is a Senior Consultant in HMA’s Southern California office. She has a keen interest in the integration of medical and supportive services – much of Lisa’s work has focused on older adults, especially dual eligibles who have long-term services and supports (LTSS) needs. Lisa also has experience working on mental health outcomes for veterans, public health preparedness, and a broad range of disability issues.

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