201 Telehealth Law and Ethical Issues Finished 6.7.23.pptx

Slide deck for Telehealth.org's live event about Telehealth Law and Ethical Issues

1. Telehealth Law & Ethical Issues: Practicing Across State Lines, HIPAA, Malpractice, Billing & More Marlene M. Maheu, PhD Founder & CEO Telehealth.org [email protected] 619-255-2788

2. Marlene M. Maheu PhD Executive Director of Telehealth.org (formerly TBHI) Founder of the Journal for Technology in Behavioral Science (JTiBS) Founder / CEO of the Coalition for Technology in Behavioral Science (CTiBS) M ore than 100 hours of digitized telebehavioral health training f ocused clinical, legal & ethical risk management & compliance S erved on a dozen professional association committees, task forces, and workgroups related to establishing standards and guidelines for telebehavioral health Published 50+ peer-reviewed telehealth book chapters & journal articles L ead author of five telehealth textbooks.

3. And there’s you - p lease introduce yourself by giving us your state, profession and specialty.

4. Learning Objectives Name 10 things you can immediately implement to manage risk in your online practice. Discuss the special relevance of HIPAA to telemental health care. Describe licensure issues regarding providing telemental health care across state boundaries.

5. Audio-Only Mode Telehealth.org assistants are here to help you with administrative issues , such as not hearing me. Please text your messages as they occur to you rather than waiting. I want to have a discussion with you throughout the event as much as possible. Help us stay on track.

6. Telehealth.org Training Recording & slide access 24/7 for 6 months . Login is required. Please respect our copyright. Please interact in chat box as I speak but avoid asking what someone else has typed. The laws are extensive , and three hours are not enough, so I will only be able to give you the highlights of what you need to know. Will show you how to find the rules and give examples from different codes.

7. Telehealth.org Training Two version of course: with or without LIVE CME/CE . You will get LIVE CME or CE if you arrived within 15 min. of start , stay the entire time, interact AND complete the post-test by midnight today. Otherwise, you will receive a course completion that awards you asynchronous course credit hours.

8. Telehealth.org Training I will not read all slides , but will show you where resources are, briefly outline their contents for you to review on your own. You are automatically enrolled into our in-house community news mailings . You can unsubscribe at any time. Lock your door, turn off your phone/email, and strap yourself in - we are about to get focused on Telehealth Law and Ethics 

9. What is your #1, most burning question about telehealth law or ethics? Please tell me what you need today.

10. Law & Ethics

11. Informed Consent Copyright © 2023 All rights reserved.

12. HIPAA Compliance

13. Practicing Across State Lines & International Borders 14

14. Mandated Reporting 15

15. Cultural Awareness & Sensitivity

16. Telesupervision

17. Reimbursement Copyright © 2023 All rights reserved.

18. Law & Ethics

19. When Practicing Telehealth, All In-Person, Local, Legal & Ethical Rules Apply

20. 21 What’s the #1 tenet of our ethical codes? Follow all applicable state and federal laws. In telehealth, we add, “follow all laws of the local jurisdiction that you enter ” when practicing across state and international borders.

21. Designed to help us think through difficult choices or (dilemmas) Weigh multiple valences Preface  principles that help us uphold the greater good STANDARDS  Ethical codes = required Guidelines = aspirational Ethics

22. Seek the consult of your malpractice attorney. We have been told that some malpractice attorneys have suggested that clinicians should explain the law as they understand it in the patient record , giving ample detail about the clinical rationale for delivering services. Possibly mention beneficence over malfeasance. Talk with your malpractice attorney about this. Ethical dilemma: How can you think about delivering “illegal” services, if in your clinical judgement, you are obligated to help someone due to a moral imperative?

23. Dr. Ali Dr. Ali was thrown into telehealth feet first , didn’t know where to get relevant and accurate information . Continued using the same intake, documentation, treatment and billing procedures as in-person. Worked with anyone, anywhere because “the rules were suspended for COVID.” Used free Skype and Facebook’s Messenger Rooms. Frequently expressed frustration with telehealth in session and occasionally mentioned they “couldn’t wait” to get back to in-person care. Didn’t feel the need to do any research or take any telehealth training but has nonetheless continued seeing some people through telehealth after COVID. Dreads intakes and emergency situations because “telehealth isn’t safe.”

24. Challenge Dr. Ali doesn’t realize that when you choose to work through telehealth, you must adapt each of your processes enough to follow all the same laws that you follow in person. If you fail, you not only can break the law, but also put your client or patient in harms way. Comparison to in-person care: telehealth is much like driving an 18-wheeler – you can carry bigger loads, but very specific adaptations are required.

25. Challenge Telehealth includes every contact across distance: telephone, email, text, video, audio, apps if they communicate with you. It can be safe and effective , but you must know what you are doing: Know the legal & ethical requirements Know your technology. Adapt your assessment processes and clinical protocols. Understand that certain processes are impractical and unsafe for telehealth.

26. 2.04 Psychologists' work is based upon established scientific and professional knowledge of the discipline. (See also Standards  2.01e, Boundaries of Competence  , and  10.01b, Informed Consent to Therapy  .) APA Ethical Standard 2.04 Bases for Scientific and Professional Judgments

27. Coalition for Technology in Behavioral Science (CTiBS) An Interprofessional Framework for Telebehavioral Health Competencies (2018)

28. CTiBS TBH Competency Domains (Will look at 2 today) Clinical Telepresence Technical mHealth 7 Domains An Interprofessional Framework for Telebehavioral Health Competencies Practice Development Legal & Regulatory Ethical & Evidence-Based

29. Informed Consent Copyright © 2023 All rights reserved.

30. Basic Concepts Represents a “meeting of the minds” Document only serves as important evidence that a meeting of the minds took place Determined by state law and can therefore be different from state to state.

31. K ey elements of informed consent? The key elements of informed consent typically include: D isclosure of relevant information C omprehension of that information V oluntary decision-making C apacity to provide consent.

32. 33

33. 34

34. 35

35. 36

36. 37

37. Clients have the freedom to choose whether to use distance counseling, social media, and/or technology within the counseling process. In addition to the usual and customary protocol of informed consent between counselor and client for face-to-face counseling, the following issues, unique to the use of distance counseling, technology, and/ or social media, are addressed in the informed consent process:  ACA Code of Ethics, Section H, Informed Consent 38

38. distance counseling credentials,  physical location of practice, and contact information; risks and benefits of engaging in the use of distance counseling, technology, and/or social media; possibility of technology failure and alternate methods of service delivery;  anticipated response time;  emergency procedures to follow when the counselor is not available;  time zone differences;  cultural and/or language differences that may affect delivery of services; possible denial of insurance  benefits; and social media policy.  ACA Code of Ethics, Section H, Informed Consent (cont.) 39

39. 40

40. Clients and supervisees, whether contracting for services as individuals, dyads, families, or groups, must be made aware of the risks and responsibilities associated with technology-assisted services.  Therapists are to advise clients and supervisees in writing of these risks , and of both the therapist’s and clients’/supervisees' responsibilities for minimizing such risks. AAMFT 6.2 Consent to Treat or Supervise

41. 42 NAADAC/NCC AP Code of Ethics, 2021 https:// www.naadac.org /code-of-ethics

42. 43 NAADAC/NCC AP Code of Ethics, 2021, VI-3 & V1-4 Informed Consent Sections Addiction professionals, who are offering an electronic platform for e-therapy, distance counseling/case management, and/or e-supervision shall provide an Electronic/Technology Informed Consent , which shall explain the right of each client and supervisee to be fully informed about services delivered through technological mediums, and shall provide each client/supervisee with information in clear and understandable language regarding the purposes, risks, limitations, and costs of treatment services, reasonable alternatives, their right to refuse service delivery through electronic means, and their right to withdraw consent at any time.

43. 44 NAADAC/NCC AP Code of Ethics, 2021, VI-3 & V1-4 Informed Consent Sections Providers shall review with the client/supervisee, both verbally and in writing, the rights and responsibilities of both providers and clients/supervisees. Providers shall have the client/supervisee attest to their understanding of the parameters covered by the Electronic/ Technology Informed Consent by signing the Electronic/Technology Informed Consent. Providers who obtain initial Consent by verbal attestation shall follow up in a timely manner with a written, signed, and dated, document .

44. 45 NAADAC/NCC AP Code of Ethics, 2021, VI-3 & V1-4 Informed Consent Sections Addiction professionals shall execute thorough e-therapy informed consent prior to starting technology-based services. A technology-based informed consent discussion shall include, but shall not be limited to: contact information of the client, counselor/provider and supervisor; e-therapy is not always an appropriate substitute or replacement for face-to-face counseling; all of the procedures that apply to delivery of in-person services shall apply to the e-delivery of services ; duty to warn and mandatory reporting laws that shall apply to all counseling services, including e-therapy; confidential and privacy  rules and laws , and exceptions to those rules and laws;

45. 46 NAADAC/NCC AP Code of Ethics, 2021, VI-3 & V1-4 Informed Consent Sections issues related to security and privacy of information , and potential for hacking or other unauthorized viewing; access to counseling services and to technology assistance to use e-therapy; benefits and limitations of engaging in the use of distance counseling, technology, and/or social media; potential misunderstandings due to limited visual and auditory cues; potential for confusion often present in e-delivery of services; response time to asynchronous communication (emails, texts, chats, etc.); possibility of technology failure and alternate methods of service delivery;

46. 47 NAADAC/NCC AP Code of Ethics, 2021, VI-3 & V1-4 Informed Consent Sections emergency protocols to follow; procedures for when the counselor is not available; consideration of time zone differences; policy regarding recording of sessions by either party; cultural and/or language differences that may affect delivery of services; possible denial of insurance benefits; and social media policy.

47. 48 https://www.apa.org/ethics/code

48. 49 https://www.apa.org/practice/guidelines/telepsychology

49. 50 As part of informed consent, psychologists are mindful of the need to discuss with their clients/patients what the billing documentation will include prior to the onset of service provision. Billing documentation may reflect the type of telecommunication technology used , the type of telepsychology services provided , and the fee structure for each relevant telepsychology service (e.g., video chat, texting fees, telephone services, chat room group fees, emergency scheduling, etc.). It may also include discussion about the charges incurred for any service interruptions or failures encountered, responsibility for overage charges on data plans, fee reductions for technology failures, and any other costs associated with the telepsychology services that will be provided. Guidelines for the Practice of Telepsychology: Informed Consent, Billing - https://www.apa.org/practice/guidelines/telepsychology

50. https://www.socialworkers.org/Practice/NASW-Practice-Standards-Guidelines/Standards-for-Technology-in-Social-Work-Practice

51. 52 https://www.socialworkers.org/Practice/NASW-Practice-Standards-Guidelines/Standards-for-Technology-in-Social-Work-Practice

52. HIPAA Compliance

53. Privacy Security Transactions 3 HIPPA Rules Health Insurance Portability and Accountability Act (HIPAA) 1996 54

54. Federal, state law and ethical guidelines demand the safeguarding of privacy as a fundamental professional obligation, irrespective of the mode of service delivery. 55 Privacy

55. Use and Disclosure of PHI Minimum Necessary Rule Patient's Rights to Access and Amend PHI Accounting of Disclosures Notice of Privacy Practices Personal Representatives Administrative Requirements Business Associates HIPPA Privacy Rule 56

56. Privacy – person’s right to keep their personal information from others Confidentiality – your duty to protect a client/patient’s right to privacy oncet hat private information is shared with you. What’s the difference between privacy and confidentiality? 57

57. 58 Right to Access https://blog.telehealth.org/counselor-settles- ocr -case-involving-hipaa-right-of-access/

58. In the United States and Canada, if a health care professional mistakenly violates a client's/patient’s privacy online only one time , they are legally or ethically obligated to inform the client/patient in writing, or email if you have written permission to send email. What happens if I end up violating a client/patient’s privacy? 59

59. The notification should include: A brief description of what happened, including the date of the breach and the date of discovery, if known. The type of PHI involved (diagnosis, notes, street address, phone #, etc.) That the individual should take steps to protect themselves from potential harm resulting from the breach. Description of what you are doing to investigate, mitigate harm and protect against further breaches. What happens if I end up violating a client/patient’s privacy? 60

60. Urgent Situations: contact the client by phone or other means, in addition to sending the written notice. Substitute Notice : If you have out-of-date contact information for 10 or more clients, provide a substitute notice, such as a notice on the home page of your website or a public notice in the media. Notify prominent media outlets if more than 500 residents are affected in a state or jurisdiction. Notice to the Secretary of US Department of Health and Human Services  if the breach involves 500 or more individuals. What happens if I end up violating a client/patient’s privacy? 61

61. Professionals using telehealth or any other form of technology are required to get a Business associate Agreement from all their technology vendors (texting, cloud storage, etc.) to be compliant with federal laws in the United States. Requirements for professionals in other countries may vary. What is a Business Associate Agreement? 62

62. 63 https://blog.telehealth.org/hipaa-policy-involving-hipaa-business-associates/

63. 64 https://www.hhs.gov/hipaa/for-professionals/covered-entities/sample-business-associate-agreement-provisions/index.html

64. 65 https://www.hhs.gov/sites/default/files/model-business-associate-agreement.pdf OFFICE FOR CIVIL RIGHTS

65. Administrative Safeguards Physical Safeguards Technical Safeguards Organizational Requirements Policies, Procedures, and Documentation Requirements HIPAA Security Rule 66

66. Standardized Electronic Data Interchange (EDI) Code Sets Unique Identifiers Requirements for Covered Entities Enforcement HIPAA Transaction Rule 67

67. Use to document the therapist's observations, assessments, and treatment plans, serving as a tool for continuity of care and professional communication. T ypes of information typically include the patient's presenting issues, diagnosis, progress, treatment interventions, therapeutic techniques, goals, and any relevant changes in the patient's condition. Mandated security includes limited access, encryption, and appropriate safeguards. Disclosure may be permitted for treatment coordination, legal proceedings, or with the patient's written consent. Psychotherapy Notes 68

68. Laws for r etention and disposal may vary by state. You are responsible for securely storing and appropriately destroying these records to maintain patient privacy. Ethical considerations include the use and sharing of notes, being mindful of the importance of informed consent, professional judgment, and the duty to protect patient confidentiality. Psychotherapy Notes 69

69. Case Study Ankita Asim, a clinical social worker, has been working with Alex, who recently experienced a traumatic event.

70. As part of the therapy process, Ankita diligently records Mark's symptoms, progress, and treatment interventions in the psychotherapy notes. Several months later, Mark decides to pursue legal action against the individual responsible for the trauma, seeking compensation for emotional distress. Ankita consults with an attorney about her legal/ethical steps.

71. Informed Consent: Ankita explains the possible implications, benefits, and risks associated with disclosing the notes, allowing Mark to make an informed decision. Relevant Information: Minimum necessary

72. Secure Transmission: Securely transfers the extracted information to Mark's attorney, ensuring compliance with HIPAA regulations and maintaining the confidentiality and integrity of the psychotherapy notes. The attorney acknowledges the confidential nature of the information received and takes appropriate measures. Testimony Preparation: If required, Ankita helps to prepare Mark by reviewing notes and collaborating with attorney.

73. Complication Ankita realizes that the psychotherapy notes that she has been keeping through the _________________ website owned by a digital employer are not separated from regular case notes. She is not allowed to download the notes from the telehealth employer’s website. The employer refuses to release the notes, stating that it would be “illegal” to do so.

74. Complication Ankita lives and is licensed in the same state as her client, Mark, where the client or patient legally owns their records. Her digital employer, who introduced her to Mark, is incorporated in another state, where the client or patient does NOT own the record. (Same issue can occur with companies from other countries.)

75. Complication Ankita signed an agreement with this employer because they were desperate for providers and gave her a $10k signing bonus. She did not have her malpractice attorney review her contract before signing. She didn’t take the time to read or understand it herself or consider its ramifications of what it meant. She had been getting uncomfortable about a few other processes with this employer but convinced herself that it was “no big deal” because her contract bound her to the company for two years.

76. Problem Solving What should Ankita have done?

77. Proper Vetting of Employer Consulted with her malpractice attorney Consulted with the legal or ethical office of her professional association(s) to see if other professionals have complained about the employer. Hired a telehealth attorney to look over the contract.

78. Psychotherapy Note Confidential Content: T herapist's observations, insights, and impressions during psychotherapy sessions, which may not be included in the patient's regular treatment record. Subjective and Reflective: Therapist's subjective impressions, reactions, and reflections on the therapeutic process and the patient's progress. Solely intended for the therapist's personal use and professional reference.

79. Psychotherapy Note Longitudinal Perspective: May include ongoing themes, patterns, and progress over time; track the effectiveness of interventions, treatment goals, and modifications. Limited Accessibility: Have more restricted access compared to regular treatment notes as per HIPAA. They are often kept separate from the patient's general medical record and are shared with other healthcare providers or entities only in specific circumstances, such as with the patient's written consent or for treatment coordination purposes.

80. Problem Solving What should Ankita do now?

81. Ankita sought legal guidance and did everything they told her to do. Throughout the legal proceedings, Ankita remains committed to maintaining the confidentiality of the psychotherapy notes while fulfilling their ethical duty to provide necessary information in support of Mark's case. The collaboration between the mental health professional and the client’s attorney ensures that the disclosure of the psychotherapy notes is done in a responsible, ethical, and legally compliant manner, respecting both client confidentiality and the pursuit of justice. Priorities

82. Milton Friedman, an influential economist and Nobel laureate. Doctrine that set the precedent for profit motive to be the primary goal of companies is known as shareholder primacy or shareholder value maximization. Primary goal of a company is to generate financial returns for shareholders – not necessarily to work for the greater good #1 Goal of US Companies 83

83. 84 https://blog.telehealth.org/ ftc - betterhelp -investigation-updates/

84. 85 https://blog.telehealth.org/cerebral-telehealth-2023-second-largest-patient-data-breach/

85. 86 https://blog.telehealth.org/majority-of-us-hospital-websites-reportedly-use-meta-pixels-to-share-patient-data/

86. 87 https://blog.telehealth.org/prominent-telehealth-startups-sharply-criticized-by-us-senators/

87. 88 https://www.hhs.gov/hipaa/for-professionals/ faq /mental-health/index.html

88. Practicing Across State Lines & International Borders 89

89. Inter-jurisdictional Practice Licensing boards that may assert jurisdiction: The one in the professional’s state(s) of licensure The one in the client’s state of location at time of call Both geographic areas

90. Licensing Facts Differences between requirements for licensure within the same profession across state lines are often dependent on: Training required of different states for applicants Enforcement cost of infractions

91. Licensing Facts Calling yourself a "coach" to practice over state lines when you are licensed can get you in more trouble than its worth Your licensure trumps your label for your work Check your state codes for the definition of your profession Write to your board and ask

92. Inter-jurisdictional Practice Best Practices: Provide services only where licensed Require client/patient to attest to his or her location on every call (is also Required by NASW 2017 Technology Standards for social workers)

93. Other Jurisdictional Obligations Mandatory reporting of Suspected abuse/neglect Practitioner's sexual communications Practitioner’s impairment due to illness, drugs, alcohol or physical condition Practitioner's improper billing

94. Other Jurisdictional Obligations Be aware of: Definitions of practice Mental health Addictions Duty to warn/protect (Tarasoff) Client/patient privilege

95. 96 Adhere to federal, state, county & city laws Regulations impact all your actions as a professional Read the licensing rules for your discipline in your state(s) of practice Check with your board – get response in writing Can get REGISTERED with a foreign board for identified clients/patients who move to other states Limited sessions What licensing and regulation issues should healthcare providers keep in mind before practicing over state lines?

96. Associations Developing Model Acts

97. 98 Interjurisdictional Practice (psychology & addictions) Interstate practice (SW) Interstate compact (counseling) License portability (MFTs) Multistate license (nursing) Interstate licensure (medicine) What are professional-specific terms for referring to practicing healthcare across state lines and international borders ?

98. 99 https://www.ncsbn.org/compacts/nurse-licensure-compact.page

99. 100 https://www.imlcc.org/

100. 101 https://psypact.site-ym.com/page/PracticeUnderPSYPACT

101. 102 https://movingsocialwork.org/

102. 103 https://counselingcompact.org/

103. 104 https://www.aamft.org/AAMFT/ADVANCE_the_Profession/License_Portability/Advocacy/MFT%20License%20Portability.aspx?hkey=1faeeaeb-a780-4add-ba09-9b41a144692f

104. Other General Considerations befor e Offering Telehealth Across state Lines Where is the client/patient? Traditional setting/home? Is the contact for intake or follow-up? Is medication being prescribed? Have you been trained in distance assessment, referrals, how to handle emergencies, breaks in the connection, intrusions, security breaches or lack of responsiveness? Does the state require continuity of care? Is your informed consent appropriate? Are you meeting the local standard of care? Do you need to be “credentialed” beyond licensure ? Prescribing often involves Drug Enforcement Agency approval.

105. State Attempts to Support Telehealth

106. Which Boards Have Clear Regulations in Place? 107 Georgia (2015) Texas (2017) Washington (2021?) Florida (2018?) California (2022) Others?

107. 108 https:// govt.westlaw.com / calregs /Document/I00E4B2134C8211EC89E5000D3A7C4BC3?viewType= FullText&originationContext = documenttoc&transitionType = CategoryPageItem&contextData =( sc.Default )

108. 109 https:// govt.westlaw.com / calregs /Document/I00E4B2134C8211EC89E5000D3A7C4BC3?viewType= FullText&originationContext = documenttoc&transitionType = CategoryPageItem&contextData =( sc.Default ) In California – Different Across Boards (for CA composite board – BBS)

109. 110 All persons engaging in the practice of marriage and family therapy, educational psychology, clinical social work, or professional clinical counseling via telehealth, as defined in Section 2290.5 of the Code, with a client who is physically located in this State must have a valid and current license or registration issued by the Board. (b) All psychotherapy services offered by board licensees and registrants via telehealth fall within the jurisdiction of the board just as traditional face-to-face services do. Therefore, all psychotherapy services offered via telehealth are subject to the board's statutes and regulations. https:// govt.westlaw.com / calregs /Document/I00E4B2134C8211EC89E5000D3A7C4BC3?viewType= FullText&originationContext = documenttoc&transitionType = CategoryPageItem&contextData =( sc.Default ) California Standards of Practice for Telehealth-BBS

110. 111 (c) Upon initiation of telehealth services, a licensee or registrant shall do the following: (1) Obtain informed consent from the client consistent with Section 2290.5 of the Code. (2) Inform the client of the potential risks and limitations of receiving treatment via telehealth. (3) Provide the client with his or her license or registration number and the type of license or registration. (4) Document reasonable efforts made to ascertain the contact information of relevant resources, including emergency services, in the patient's geographic area. https:// govt.westlaw.com / calregs /Document/I00E4B2134C8211EC89E5000D3A7C4BC3?viewType= FullText&originationContext = documenttoc&transitionType = CategoryPageItem&contextData =( sc.Default ) California Standards of Practice for Telehealth (BBS)

111. 112 d) Each time a licensee or registrant provides services via telehealth, he or she shall do the following: (1) Verbally obtain from the client and document the client's full name and address of present location, at the beginning of each telehealth session. (2) Assess whether the client is appropriate for telehealth, including, but not limited to, consideration of the client's psychosocial situation. (3) Utilize industry best practices for telehealth to ensure both client confidentiality and the security of the communication medium. https:// govt.westlaw.com / calregs /Document/I00E4B2134C8211EC89E5000D3A7C4BC3?viewType= FullText&originationContext = documenttoc&transitionType = CategoryPageItem&contextData =( sc.Default ) California Standards of Practice for Telehealth (BBS)

112. 113 (e) A licensee or registrant of this state may provide telehealth services to clients located in another jurisdiction only if the California licensee or registrant meets the requirements to lawfully provide services in that jurisdiction, and delivery of services via telehealth is allowed by that jurisdiction. (f) Failure to comply with these provisions shall be considered unprofessional conduct. https:// govt.westlaw.com / calregs /Document/I00E4B2134C8211EC89E5000D3A7C4BC3?viewType= FullText&originationContext = documenttoc&transitionType = CategoryPageItem&contextData =( sc.Default ) California Standards of Practice for Telehealth (BBS)

113. 114

114. 115 https:// floridasmentalhealthprofessions.gov /latest-news/telehealth/

115. Which Board Regulates? Florida Practitioners If you would like to provide services to a client outside of the state of Florida, you must contact the board in the jurisdiction where the patient is located. Not all states permit telehealth service even under emergency circumstances. https:// floridasmentalhealthprofessions.gov /latest-news/telehealth/ 116

116. 117 https:// floridasmentalhealthprofessions.gov /latest-news/telehealth/ Out-of-state health care practitioners must be registered with the Florida Department of Health to perform telehealth services for patients in Florida.  Pursuant to section 491.014(4)(d), Florida Statutes, you may practice under a limited basis without a license as specified below: 4) No person shall be required to be licensed, provisionally licensed, registered, or certified under this chapter who: (d)  Is not a resident of this state but offers services in this state, provided: 1. Such services are performed for no more than 15 days in any calendar year; and 2. Such nonresident is licensed or certified to practice the services provided by a state or territory of the United States or by a foreign country or province. Practicing Telehealth in Florida

117. 118

118. 119 https://flhealthsource.gov/telehealth/ or send email to: [email protected] Where to Register in Florida

119. 120

120. Illustrative 2022 California Board of Psychology, Telehealth FAQ, Questions & Answers

121. 122

122. https:// www.psychology.ca.gov / laws_regs / telehealth_faq.shtml

123. 124 “Yes… Assuming the case is appropriate for telehealth, the licensee is permitted to provide such services to any client located in California.” Can a California licensee provide long-term telehealth services to a client located in California?

124. 125 “It depends. The Board regulates practice by its licensees in California when the client seeking services is in California or initiates services within California. But the answer to this question will likely be dependent on whether it is permitted under the laws and regulations of the jurisdiction(s) other than California where the client or psychologist is located. (16 CCR 1396.8(a)(2))” Can a California licensee provide telehealth services to a client while either or both the client or psychologist are outside of the state?

125. 126 “It is not the Board’s intention to limit a California licensee’s ability to provide telehealth services to a client in another jurisdiction. The regulations allow for temporary telehealth practice to clients outside of California, however the laws and regulations of the jurisdiction where the client is located may determine whether it is permissible (16 CCR 1396.8(a)(2)).” How should the psychologist proceed in an emergency if interjurisdictional practice is not allowed according to the rules of California or the other jurisdiction?

126. 127 “The Board cannot dictate rules for another jurisdiction and providing services via telehealth does not release a licensee from any legal or ethical responsibilities for practicing in or treating someone in that jurisdiction. (See also Ethical Principles of Psychologists and Code of Conduct (2010), American Psychological Association, standard 2.02).” How should the psychologist proceed in an emergency if interjurisdictional practice is not allowed according to the rules of California or the other jurisdiction?

127. 128 “California is not a part of the Association of State and Provincial Psychology Board’s Interjurisdictional Compact (PSYPACT) so PSYPACT has no impact on a California licensee’s ability to provide telehealth services.” Does PSYPACT allow me to engage in interstate practice?

128. 129 “It depends. Consideration should be given to the licensing laws and regulations of the jurisdictions in which the psychologist and client are located as the licensee may be considered to be practicing in the jurisdiction in which they are located and/or the jurisdiction in which the client is located.” Do the regulations allow telehealth services when the psychologist and/or the patient has moved permanently out of state?

129. 130 “A California license does not counter the obligation to practice in accordance with the laws and regulations of the jurisdiction to which the psychologist and/or the client has permanently relocated.” Do the regulations allow telehealth services when the psychologist and/or the patient has moved permanently out of state?

130. 131 “The Board will investigate any complaint made against a California licensee regardless of where the services were delivered or received (16 CCR 1397.2(b-c)).” Do the regulations allow telehealth services when the psychologist and/or the patient has moved permanently out of state?

131. 132 “The regulations allow for temporary telehealth practice to clients outside of California, so in this scenario the provision of services is permitted.” What if both patient and psychologist are located out of state but there is still a connection to California?

132. 133 “Consideration still should be given to the licensing laws and regulations of the jurisdictions in which the psychologist and client are located, as the licensee may be considered to be practicing in the jurisdiction in which they are temporarily located and/or the jurisdiction in which the client is located.” What if both patient and psychologist are located out of state but there is still a connection to California?

133. 134 Calling yourself a coach (or any other name) when you are licensed does not change your requirements as a licensed professional. Many professionals who have taken coaching classes learned differently. If that’s you, ask your licensing board. Can coaches legally practice over state lines if they also hold a professional healthcare license?

134. Opening protocol: Ask client/patient to “attest” to their identity & location Document their response Informed consent – defined by state of location of the client/patient If not in your state(s) / province(s) of licensure, ask about whether it is an emergency Use an emergency protocol How do I establish my client’s location?

135. Client/Patient Safety If you get reimbursed, to be sure you can legally file a claim for reimbursement To be sure you legally can deliver services (geographic location) Some states have codified the need for this protocol Why bother with this opening protocol? 136

136. 137 (d) Each time a licensee or registrant provides services via telehealth, he or she shall do the following:  (1)Verbally obtain from the client and document the client’s full name and address of present location, at the beginning of each telehealth session.  (2) Assess whether the client is appropriate for telehealth, including, but not limited to, consideration of the client’s psychosocial situation.  (3) Utilize industry best practices for telehealth to ensure both client confidentiality and the security of the communication medium.  https://www.bbs.ca.gov/pdf/publications/lawsregs.pdf How to Start Every Session (California Board of Behavioral Sciences - BBS)

137. 138 https://www.bbs.ca.gov/pdf/publications/lawsregs.pdf

138. 139 Consumer Tips California Consumers are advised to be cautious when seeking counseling or psychotherapy via telehealth, by understanding the following: Always  verify the license ! Individuals providing counseling or psychotherapy must be licensed in the State of California Licensees must disclose to the consumer, their license type and number, prior to commencement of services Fees being charged for services, as well as  how and to whom the fee will be paid Methods used by the licensee, to ensure confidential communication Risks and benefits of counseling and psychotherapy via telehealth https:// www.bbs.ca.gov /consumers/ info.html

139. States typically have a definition of practice. That definition explains what licensees are expected to do. If you practice in more than one state, review each state’s definition for your profession. Who decides when healthcare professionals are engaged in a “professional relationship?”

140. 141

141. 142

142. 143

143. 144 https://texreg.sos.state.tx.us/public/readtac$ext.TacPage?sl=R&app=9&p_dir=&p_rloc=&p_tloc=&p_ploc=&pg=1&p_tac=&ti=22&pt=34&ch=781&rl=302

144. 145 (c) Practice of Master's Social Work --Applying social work theory, knowledge, methods and ethics and the professional use of self to restore or enhance social, psychosocial, or bio-psychosocial functioning of individuals, couples, families, groups, organizations and communities. An LMSW may practice clinical social work in an agency employment setting under clinical supervision, under a supervision plan, or under contract with an agency when under a clinical supervision plan. Master's Social Work practice may include applying specialized knowledge and advanced practice skills in assessment, treatment, planning, implementation and evaluation, case management, mediation, counseling, supportive counseling, direct practice, information and referral, supervision, consultation, education, research, advocacy, community organization and developing, implementing and administering policies, programs and activities. An LMSW may engage in Baccalaureate Social Work practice.

145. https://www.socialworkers.org/Practice/NASW-Practice-Standards-Guidelines/Standards-for-Technology-in-Social-Work-Practice

146. 147 https://www.socialworkers.org/Practice/NASW-Practice-Standards-Guidelines/Standards-for-Technology-in-Social-Work-Practice

147. 148 NASW Technology Standard 2.06: Competence: Knowledge and Skills Required When Using Technology to Provide Services (expanded) communicate effectively while using the technology to provide social work services handle emergency situations from a remote location apply the laws of both the social worker’s and client’s location be sensitive to the client’s culture , including the client’s cultural community and linguistic, social, and economic environment attend to clients’ unique needs and challenges ensure that the technology is in working order to provide effective services and avoid disruption keep abreast of the changing landscape of technology and adapt accordingly

148. International Telehealth Practice 149

149. International Practice Where you will be and who you will serve? In U.S. and serving another country? In another country and serving U.S.?

150. International Practice Does your profession have a licensing board in the foreign country? Speak to your regulatory association Contact the U.S. embassy for the intended country C 1994-2021 Telebehavioral Health Institute, LLC All rights reserved.

151. Ignorance is not a defense in the face of the law. Many countries not only require local licensure, but all license applicants must sit for their local exam in their local language . If you are investigated, choosing to leave US soil and entering a country via technology places the burden of proof on you to show that you are operating legally and ethically. Next, is how to steadily accumulate that “proof.” Do other countries require that foreigners hold a local license for legal practice in their country?

152. Check with your licensing board to be sure that you can go out of state without written approval from the foreign entity. Be aware that some states make it illegal for you to exit a state to practice elsewhere without written authority from the foreign state or country. Check with your malpractice carrier and get their written response if possible. How do you practice over international borders?

153. 154 * Recent response from psychology board in Portugal said a valid local psychology license works in their country.

154. Visit the foreign country’s website , look for translation services. Take screen shots of the country’s website, licensing board, embassy in Washington DC Show proof of having tried to contact the local licensing board , or the foreign embassy, asking for the name of their department of health (ministries?) or similar term. Time and date stamp on your email How do you document practicing over international borders w/o a foreign license ?

155. Summary 5 Steps to Practicing Legally in Foreign States & Countries

156. Verify your licensure in your own state (enter your license number into your state website).

157. Comply with all foreign state laws re: Intake/progress notes Termination notes Informed consent Mandated reporting (suicide, Tarasoff, etc.) Continuity of care TBH training/supervision Additional security and/or privacy laws/other

158. Contact the local licensing boards of all states you wish to serve to review their requirements. Ask about any telehealth-specific documents that you can review. Ask if they are in, or are considering joining, a profession-specific model act of some type to facilitate practicing across state lines.

159. 4. Check the destination state’s licensing board website for their requirements in your profession. Compare and contrast to see what’s different. Consider: abuse reporting, duty to warn, crisis intervention and planning, state policy guidelines for involuntary hospitalization, continuing education requirements and reporting, license renewal. Decide if your practice can develop a policy to encompass each state’s rules and regulations or if your practice will need separate policies for each state of practice. Determine if you are up for the challenge in each foreign state (or country) being considered.

160. Contact your malpractice carrier and get a written explanation of your coverage. Have an attorney interpret their response.

161. Technology Choices Copyright © 2023 All rights reserved.

162. #1 reason our colleagues get disciplined by licensing boards for telehealth is: 163 Poor Boundaries

163. Competence Be able to demonstrate competence before using any technology.

164. APA Telepsychology Guidelines Boundaries of competence Are you competent to deliver your traditional service in technical environments? Differs by environments.

165. Telephone

166. Videoconferencing

167. Text Messaging

168. Text messaging programs that are built into mobile phones are not necessarily compliant with all required privacy protections for health professionals to use in their practices. Many professionals choose to to purchase a HIPAA compliant platform that allows for HIPAA-compliant texting when desired. Is text-messaging HIPAA compliant? 169

169. Poor Texting Boundaries Had to pick daughter up from school… Starving, let me grab a bite to eat… Doctor’s office scheduled me today of all days… Husband stuck in traffic, I need to pop over to his mother’s and will call you after that… Hair is a mess, didn’t get a chance to shower, hope you don’t mind… 170

170. You go over the allotted session time because you’re home and “have nothing else going on.” You consistently “forget” because you are enjoying the client or patient You “don’t mind” Time Boundaries 171

171. Email

172. #1 reason our colleagues get disciplined by licensing boards for telehealth is texting inappropriately: jokes, pics, memes, etc. 173 Poor Boundaries

173. Emails and text messages about clinical issues exchanged with clients/patients are relevant to the practice of healthcare and therefore need to be kept private and recorded in the patient file. Do I need to keep a copy of my client / patient texts and emails? 174

174. EHRs

175. Remote Patient Monitoring & Digital Therapeutics

176. Social Media

177. You respond with more information than needed. You share pictures of yourself or your life You send emoticons, memes or use “ LOL”and other abbreviations, as you would with family or friends Social Media 178

178. ChatGPT

179. ChatGPT – Chat Generative Pre-Training Transformer Launched 11/22 Can give impression of engaging in a natural conversation. No specific healthcare laws yet. Ethics  must exercise caution. Never use to write email or texts to clients with PHI  privacy Always review what was written for errors.  Competence Will increasingly be used for therapy.

180. 181 https://blog.telehealth.org/what-is- chatgpt /

181. 182 https://blog.telehealth.org/benefits-of-technologies-for-ai-mental-health/

182. Mandated Reporting 183

183. Can differ by state & board for amounts of time allowed for you to report (24 hr , 36, 72 hrs ) Duty to Report Child Abuse Elder Abuse Spouse Abuse Duty to Warn Tarasoff Abuse in CA includes physical abuse, sexual assault, misuse of physical or chemical restraint, neglect and isolation. Inform clients/patients of your required reporting in your informed consent process What should I know about telehealth & mandated reporting?

184. Can differ by state & board for definitions of abuse. Abuse in CA includes physical abuse, sexual assault, misuse of physical or chemical restraint, neglect and isolation. Inform clients/patients of your required reporting Mention your legal requirement s and how they might differ across states included in your informed consent process and document. What should I know about telehealth & mandated reporting?

185. Duty to Report/Warn Inform clients/patients of your remote safety policies in your informed consent process (Have detailed backup safety plans ) National Conference of State Legislators – Duty to Warn Differences Across States http://www.ncsl.org/research/health/mental-health-professionals-duty-to-warn.aspx What should I know about mandated reporting when I practice across state lines?

186. 187 https://www.ncsl.org/research/health/mental-health-professionals-duty-to-warn.aspx

187. C 1994-2021 Telebehavioral Health Institute, LLC All rights reserved. Accurate as of January 2023

188. 189 https://www.cchpca.org/

189. Cultural Awareness & Sensitivity

190. Disparities Educate yourself about telehealth and disparities, especially in rural areas. Digital literacy Local idioms Local cultural, religious and political beliefs. Have a detailed intake process, which will demonstrate to the court that you did your job if ever you are brought up on charges.

191. Cultural Sensitivity Over State Lines Essential aspect of telehealth Screening procedures must be well developed Referral options must be responsibly offered Knowing how to handle emergencies , including at first visit, must be error-proof

192. Jorge is a 70-year-old Spanish-speaking man living in a rural community in Arizona. He immigrated to the United States 45 years ago and has limited proficiency in English. Jorge suffers from chronic anxiety and has been referred to a mental health specialist for ongoing treatment. Given his remote location and limited transportation options, telehealth was recommended for his ongoing therapy sessions. Jorge 193

193. Language Barriers : Jorge's limited proficiency in English presents a significant obstacle in his teletherapy sessions. His therapist doesn't speak Spanish fluently, and nuances of the conversation might get lost in translation, impacting the quality of care. Access to Technology : Living in a rural area, Jorge has limited internet access and doesn't own a computer. He has a basic mobile phone, but it lacks the features necessary for video conferencing. Challenges 194

194. Language Services : To overcome the language barrier, Jorge's therapist contacted a healthcare interpreting service. They offered remote simultaneous interpretation services, which could be incorporated into teletherapy sessions. While this added an additional layer to their sessions, it helped Jorge express his feelings more clearly and accurately. Technology Assistance : To address the technology gap, the local community center, which had received a grant for digital inclusion efforts, provided Jorge with a tablet and set up an internet connection for him at home. They also offered him training sessions to navigate the technology and the telehealth platform. Interventions 195

195. With the help of interpretation services, Jorge was able to communicate effectively with his therapist. Access to the right technology allowed him to participate in teletherapy sessions without needing to travel to the therapy office. Jorge reported feeling more at ease being able to express himself in his native language, and his engagement with the therapy process improved. Jorge -Outcomes 196

196. This case study underscores the importance of acknowledging and addressing both language barriers and technology access in delivering telehealth services. Culturally competent care , which includes providing language services, is critical to effective therapy. Moreover, digital inclusion efforts can help overcome technological barriers for marginalized communities and improve their access to telehealth services. Jorge - Lessons Learned 197

197. Telesupervision

198. Telephone vs video – supervisor has much less info to work with. Easy for supervisees to keep you in the dark if you are not techno- saavy . Consider improving your software to one that allows you to move forward and backward in the video recording. Take a full program of training to understand all your telehealth requirements. Georgia example. How is telesupervision different from in-person? 199

199. Learn what your supervisee’s licensing code says about practicing over state lines. Ask them to do the footwork. Perhaps make a chart comparing the two sets of laws. Start with competency paper I identified at the beginning. Might be 5-10 hours of work. Find like-minded colleagues to help you. Certainly doable. How to think about legal and ethical interjurisdictional issues for your supervisee's profession if different from yours. 200

200. Not being aware of how the other party’s ethical code differs from one’s own. What is the biggest problem with interprofessional telesupervision? 201

201. Reimbursement Copyright © 2023 All rights reserved.

202. Always use proper procedure & modifier codes for telehealth or telephone. If you are not licensed in the foreign state, you technically cannot bill for services rendered to people located in those states at the time of their appointments. Your signature on the 1500 form attests to the accuracy of your request for payment. How to think about billing for services delivered over state lines or in multiple states for the same client or patient? 203

203. International Practice Will you try to collect reimbursement while your feet are on foreign soil? Allowed by some insurance companies Not allowed by Medicare

204. Medicare In-Person Visit Requirement Starting January 1, 2025 Line-item in Consolidations Appropriations Act of 2020. Takes effect in 2025, will give Medicare and Congress time to review new literature Medicare bases decisions on the evidence-base and makes recommendations to Congress for laws. https://blog.telehealth.org/new-medicare-law-requires-in-person-visit-for-telehealth-coverage/

205. Medicare In-Person Visit Requirement Starting January 1, 2025 Much research has been published about telehealth since 2019. Not seen any research to support an in-person requirement to date. Recommend waiting for Medicare to sort this out, as it has many other laws regarding telehealth mental health. https://blog.telehealth.org/new-medicare-law-requires-in-person-visit-for-telehealth-coverage/

206. Medicare In-Person Visit Requirement Starting January 1, 2025 For behavioral health only One i n-person visit is required  within the first six months of an initial telehealth visit and every 12 months thereafter, with certain exceptions. Two years is a long time. Medicare is working on this and other requirements.

207. Malpractice Insurance Copyright © 2023 All rights reserved.

208. Treating a patient/client online who is in a state where you are not licensed may void your malpractice coverage . How can practicing over state lines without a license in the foreign state hurt me? 209

209. Write to your malpractice carrier and describe your proposed service, including every state you enter to deliver care Can be nullified if practitioner is practicing “criminally” For benefits to apply, definition of practice and all applicable laws for each state must be met (e.g., you might need to have a formal, signed client agreement or informed consent for clinician to be considered as providing a professional service worthy of coverage) How exactly does practicing over state lines affect my malpractice insurance?

210. What if I am not licensed in the foreign state or country, will you still cover me? If you do cover me, will I be covered for regulatory or civil actions? What are the limits of each of those types of coverage? What if I do something illegal to meet the requirements of my online employer, will you cover me? What if I violate HIPAA or a state privacy law? What other questions might I ask of my malpractice carrier?

211. We are subject to two types of courts in the US: 1) Civil 2) Regulatory – court of state licensing board members = regulators 212

212. Comply with: Zoning Condo CC&Rs Privacy Insurance Companies Requiring office address Listing your home address on their websites Doing home visits Working from Home

213. Jorge announces that he is planning to care for his 90-year-old mother in San Miguel de A llende, Mexico. He will stay in Mexico for a month, maybe two as she is dying. He wants to continue his therapy sessions with you while he is in Mexico to deal with his mother’s death, particularly because he has unresolved issues with his older brother. Jorge’s anxiety has skyrocketed, and he is begging for support as he deals with his family. You are not licensed in Mexico. What do you do? Jorge - Lessons Learned 214

214. Dr. Ali Dr. Ali revised all intake procedures & documentation to reflect telehealth. Contacted an attorney through state professional association to discuss/review documentation Paid particular attention to telehealth informed consent process & document to include details about the importance of identifying/verifying the client’s location at every session and obtained appropriate licensure or registration for every state entered – or didn’t see people out of state. C ontacted the national association to find out about any model acts to practice over state lines. Reviewed malpractice policy for wording specific to telehealth. Developed a standard opening protocol that they now use with every telehealth session. Took specific training on other legal & clinical issues, including handling telehealth emergencies.

215. FREE Legal Information Easy way to write to all involved state, provincial and national licensing boards to get requirements is this format ( www.statename.gov ) Visit board websites; read licensure information with an eye to telehealth, even if the word is not mentioned (will take you about an hour per board) Develop spreadsheet to track issues across states Put all good links in spreadsheet for easy access later Split up state research with a study partner

216. How to Find Legal & Ethical Information Visit https://blog.telehealth.org for more than 700 free blog posts.

217. 218

218. How to Get Telehealth Licensing Information Contact your professional association (ethical or legal office) Join association groups or ask to form one if one doesn’t exist

219. Learning Objectives Name 10 things you can immediately implement to manage risk in your online practice. Discuss the special relevance of HIPAA to telemental health care. Describe licensure issues regarding providing telemental health care across state boundaries.

220. Suggestion Organize Your To-Do List Prioritize your activities Focus on this week, next week Review weekly with colleagues if you can 221

221. Telehealth.org [email protected] 619-255-2788 Keep in touch! 

222. Questions?