PSYPACT- Practicing Over State Lines May 2024.pptx

Telehealth.org's slide deck for PSYPACT- Practicing Over State Lines LIVE event.

1. Navigating PSYPACT: Your Guide to Interstate Practice Mariann Burnetti -Atwell, PsyD ASPPB CEO Marlene M. Maheu, PhD Telehealth.org Founder & CEO [email protected] 619-255-2788

2. Mariann Burnetti -Atwell, PsyD Chief Executive Officer for the Association of State and Provincial Psychology Boards, the founding group behind PSYPACT. She has been touring the country training psychologists in the basic of PSYPACT for several years. She sits on the PSYPACT Commission as the Ex-Officio Member, but does not represent the Commission or the opinions of the Commission.

3. Marlene M. Maheu, PhD Published five peer-reviewed telehealth textbooks, 60+ book chapters and journal articles, and 1250+ blog posts found at blog.telehealth.org. Developed 72+ hours of evidence-based and competency-based telehealth training at Telehealth.org, trained more than 86k professionals in telehealth since 1994. Founder & CEO of Telehealth.org Founder & CEO of the  Coalition for Technology in Behavioral Science (CTiBS) & Founder of the  Journal for Technology in Behavioral Science Chair of the first Committee for Telebehavioral Health Competencies B

4. And you? Please introduce yourself to our group with: Your City, State Your Specialty … If you have ever taken any of our training.

5. Suggestion Make a Telehealth To-Do List Focus on “to-dos” Group then prioritize your activities. Review weekly with colleagues if you can. 5

6. Disclaimer & Disclosure Our efforts are focused on educating rather than deliver legal or psychological advice. We are not attorneys. We and our organizations disclaim responsibility, that is, we cannot and will not take responsibility for your choices based on our broad overview of relevant issues. Please proceed with caution and seek the advice of an experience telehealth attorney before taking any questionable action or if you have any questions. DISCLOSURE: we have no conflicts of interest with parties mentioned in this presentation. 6

7. Audio-Only Mode You are free to leave after our scheduled time. All post-test content will have been covered. Telehealth.org assistants are here to help you with administrative issues (not hearing us, finding post-test, etc.)

8. 8 What is your #1, most burning legal or ethical question about working over state lines with PSYPACT? Please type your response into the chat box.

9. Maximize Your Learning Please turn on your camera. Ask questions in chat box as they occur to you rather than waiting. We will stay up to 10 minutes after the meeting to answer as many of your questions as possible. First come, first served. You are free to leave after 60 minutes for post-test content will have been covered. Ask family & friends to stay away.  Mute your phone. Lock your door.

10. Learning Objectives Participants will explain the responsibilities of PSYPACT practitioners in ensuring compliance with state laws and ethical standards. Participants will describe how to assess ethical considerations, including confidentiality and informed consent when practicing across state lines under PSYPACT. Participants will describe where to access resources and support for maintaining ethical and legal compliance into their practice as PSYPACT practitioners. B

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

12. Regulations for Practicing Over State Lines Are Made by State Licensing Boards Not the federal government Not professional associations B

13. Who to ask about licensure? State Boards Are Your Only 100% Reliable Source No exceptions. Not one. None.

14. State laws and regulations override all other contributing factors when it comes to practicing over state lines. This is even true with national emergencies . B

15. Which State Boards Are Involved with Practicing Over State Lines? Licensing boards for your profession or different professional boards for supervisees from other professions may assert jurisdiction. The board in your state(s) of licensure. The licensing board in the patient’s or client’s location at time of contact. Boards in both geographic areas.

16. Typically, healthcare providers must be licensed in the state where the client or patient is located at the time of the telehealth interaction. Patient centered care – care follows the client or patient PSYPACT facilitates the ability for providers to practice in multiple states. However, several responsibilities remain for the individual practitioner to navigate. The bulk of today’s program will outline those responsibilities. This outline is not necessarily comprehensive. 16 16

17. All ethical codes start by requiring adherence to all relevant laws. Therefore, all ethical standards are built on the foundational framework established by law. What is relationship between law & ethics? 17

18. State Licensing Requirements (PSYPACT) Definition of Practice – Standard of Care Emergency Service Management Establishing a “Professional Relationship” Privacy & Confidentiality Informed Consent Continuity of Care Mandated Abuse Reporting Mandated Duty to Warn (Protect, Tarasoff) Mandated Practitioner Reporting Prescribing Policies 22 Regulations & Issues that Can Differ Across States 18 18

19. Reimbursement Regulations Clinical D ocumentation Requirements Ownership of Patient Records Cross-State Emergency Licensing Exceptions Supervision, Telesupervision & Documentation Continuing Education Requirements Malpractice Liability Insurance Policy L aws Professional Liability (Malpractice) Coverage Cultural, Diversity & Linguistic Accommodations Definitions of T elehealth Registration for # of Days or Miles 22 Regulations & Issues that Can Differ Across States 19 19

20. Types of Behavioral Regulatory Boards in the US Addictions Behavior Analysis Counseling Marriage & Family Therapy Nursing Nurse Practice Psychology Psychiatry Psychoanalysis School Psychology Social Work 20 20 B

21. Regulatory Boards. States can differ widely and operate unchallenged as little “fiefdoms.” States have many regulatory boards. Boards are made of a few people who interpret state law for their profession. Board interpretations of state law can differ widely from state to state . Regulations can also differ widely from one board to the next in the same state. Regulations & Issues that Can Differ Across States 21 21

22. These outside boards can dominate in language, which can lead to contradictions. Some state have composite boards with multiple professions under the psychology board (behavior analysts & psychoanalysts). Regulatory language can be confusing to out-of-state professionals. Example: New Jersey refers to telehealth services by counselors and psychologists as “telemedicine,” even though New Jersey psychologists and counselors are prohibited from practicing “medicine.” Regulations & Issues that Can Differ Across States 22 22

23. Some regulations may lack internal consistency. Language in one part of the code can contradict another part of the same code. Some states have adopted the APA ethics code as law (California), which can be problematic as the ethics code was written to guide thinking through dilemmas - and not written to be law. Regulations & Issues that Can Differ Across States 23 23

24. Boards Define the Standard of Care – A Standard of Care outlines the level and type of care that a reasonably competent and skilled healthcare professional, with a similar background and in the same community, would have provided under similar circumstances. Can vary, with some states providing detailed guidelines on what is expected of telehealth providers. Other states say little or nothing about telehealth, leaving the practitioner to guess at how to operate. Regulations & Issues that Can Differ Across States 24 24

25. Some boards require that you “register” with their board when licensed from out of state, but do not routinely confirm receipt of forms when filed through the board website (Georgia). You cannot be sure if you are legally registered without repeatedly writing to inquire about status. Weeks or months can pass with communications unacknowledged. Best to always communicate by email with time stamps, if email address is provided. Others answer inquiries in just a few days. Some boards have members who are not psychologists (Colorado). Regulations & Issues that Can Differ Across States 25 25

26. 26 https://psypact.site-ym.com/page/PracticeUnderPSYPACT B

27. Boards Define the Standard of Care – Outlines the level and type of care is to be delivered by a reasonably competent and skilled healthcare professional, with a similar background and in the same community, under similar circumstances. Regulations vary, with some states providing detailed guidelines for expectations of telehealth providers. Other states say little or nothing about telehealth, leaving practitioners to guess at how to conduct themselves. Regulations & Issues that Can Differ Across States 27 27

28. 3. Establishing a “Professional Relationship” – States may differ on definitions for when a provider-patient relationship exists. Depending on the state, such a relationship can be established with: Any contact Intake protocol Signing informed consent document . Regulations & Issues that Can Differ Across States 28 28

29. States typically have a “definition of practice.” That definition explains what licensees are expected to do. States are in flux with regards to telehealth. Regulations can change quickly as regulators get more sophisticated about telehealth practice. Who decides when healthcare professionals are engaged in a “professional relationship?”

30. 4. Privacy & Confidentiality Patient privacy as defined by the Health Insurance Portability and Accountability Act (HIPAA) Privacy and confidentiality additions can be made by state law, such as in consumer protection states such as California & Texas. Digital Data - Some states may have additional protections above and beyond HIPAA. See California Consumer Privacy Act. Regulations & Issues that Can Differ Across States 30 30 B

31. 5. Informed Consent . Providers must be aware of and comply with the specific legal and regulatory frameworks specifically governing telehealth. Can vary widely. Florida, has a specific Telehealth Provider Registration California only requires verbal telehealth consent, but must be documented in the patient record, and accompanied by a full traditional informed consent. What about reimbursement issues? Recording sessions? Interruptions? Disconnects? Your termination procedures and much more Regulations & Issues that Can Differ Across States 31 31

32. 6 . Continuity of Care Some states require continuity of care regardless of employer policies asking employees to cover “shifts” online. No single source for this information, but states vary widely on their requirements. Resources: State boards State Health departments Legislative resources and legal databases State Insurance Departments & Commissioners Your informed telehealth attorney Regulations & Issues that Can Differ Across States 32 32 B

33. 7. Mandatory Reporting – Duty to Report States may differ in their requirements for mandatory reporting of certain conditions or situations encountered through telehealth. Regulations & Issues that Can Differ Across States 33 33 B

34. 7. Mandated Reporting Child Abuse and Neglect - All states require the reporting of suspected child abuse and neglect. However, the specifics of what must be reported, to whom, and within what timeframe can vary. Legal definition of “child” – age 18? Do you report past abuse? Past abuse if children are not currently in danger? Elder Abuse - Physical, sexual, emotional abuse, or financial exploitation, is typically mandatory, but the specifics can also vary by state. Spousal - Differs by state, setting Regulations & Issues that Can Differ Across States 34 34 B

35. 8. Duty to Warn National Conference of State Legislators tracks Duty to Warn (“Serious Harm”) Differences Across States http://www.ncsl.org/research/health/mental-health-professionals-duty-to-warn.aspx What about Duty to Warn? (AKA Duty to Protect or Tarasoff) Regulations & Issues that Can Differ Across States Mandated Reporting B

36. 36 https://www.ncsl.org/research/health/mental-health-professionals-duty-to-warn.aspx 8. Duty to Warn B National Conference of State Legislators Website

37. https://www.ncsl.org/health/mental-health-professionals-duty-to-warn B National Conference of State Legislators Website

38. 9. Mandated Practitioner Reporting California Practitioner Misbehavior Impairment due to illness, drugs, alcohol or physical condition Improper billing Sexual communications - Licensees/registrants who are told by a patient of sexual involvement with another therapist are required to give the patient the  Department of Consumer Affairs brochure:  Therapy Never Includes Sexual Behavior Regulations & Issues that Can Differ Across States 38 38

39. 9. Mandated Reporting California Practitioner Misbehavior Sexual Communications Regulation URL: https:// www.psychology.ca.gov /consumers/ filecomplaint.shtml #:~:text=Licensees%2Fregistrants%20who%20are%20told,Therapy%20Never%20Includes%20Sexual%20Behavior. Regulations & Issues that Can Differ Across States 39 39

40. 10 . Emergency Service Management You must have a protocol for emergency situations wherever your client or patient is located. Informed Consent is cornerstone. Ask for ongoing information about local hospital / EMT or Paramedics Get info from local police/sheriff station about their respective policies Your “opening protocol” – where are they now? Privacy? Child/elder care? Other expected interruptions? Regulations & Issues that Can Differ Across States 40 40

41. Opening protocol: Ask client/patient to “attest” to location at the start of every session. Document their verbal attestation. Include the “location discussion” in your informed consent process If client is not in your state(s) / province(s) of licensure, ask if they are having an emergency Use an “emergency protocol” rather than full session End the meeting. Say more about the opening protocol and how I can establish my client’s location…

42. 11 . Prescribing Policies States have varying regulations regarding the prescription of medications via telehealth, especially controlled substances. Providers must comply with both federal and state prescribing regulations. DEA Imagine you don’t prescribe medication but are seeing someone who takes medication. What is your policy if they 1. run into trouble with those medications, 2. they need medical care, and 3. they are in a state where their prescriber is not licensed and won’t treat? Did you mention your medical care policy in your informed consent? Regulations & Issues that Can Differ Across States 42 42

43. 12. Reimbursement Regulations: Terms and rates for telehealth services are not uniform across states for private or Medicaid insurers. Reimbursement requirements in different states can vary significantly. State funded services often have their own limits. Some states have parity laws that require reimbursement for telehealth services at the same rate as in-person services. Others do not, which allows insurers to cover or not cover, as they choose, often for unspecified reasons. Many private insurance companies test “markets” in one state or another by changing coverage before they disseminate more widescale policies across states. Regulations & Issues that Can Differ Across States 43 43 B

44. 12. Reimbursement Regulations Make sure your services are covered by Medicare, Medicaid, or private insurance in the state where the client patient is located when receiving services. Medicare violations can land you in prison, and incur hefty financial penalties. Visit state insurance department or “commission” websites for information and to ask questions related to state policies of relevance to your work. Regulations & Issues that Can Differ Across States 44 44 B

45. 13. Documentation Requirements In some states, mere mention of telehealth and your notation that the mention occurred will suffice to meet telehealth requirements (CA). Others require more. Hwhichever , the implication is that you have performed a completed a traditional informed consent process. Steps: Have a copy of IC in your hands. Ask if they have read it. If not, summarize. If yes, ask for questions. Note questions and your answers on your copy. Mention having completed this IC process in your patient notes. Have pt. review, sign, send/mail their copy to you. Regulations That Can Differ Across States 45 45

46. 14. Ownership of P atient Records Accurate and thorough documentation of telehealth services is essential , including compliance with each state's laws regarding medical records. Protects the people you serve. If you work for a group or employer, protects them. Protects your profession’s reputation. Protects you. Regulations & Issues that Can Differ Across States 46 46 B

47. 14. Ownership of Client/ P atient Records In some states, the provider owns the record. In others, the patient owns the record. Under HIPAA, patients are entitled to obtain their digital records. The single most frequent HIPAA violation is refusing to give ACCESS to digital records. Always identify who owns the client or patient record as well as your legal requirements before giving or denying access. Regulations That Can Differ Across States 47 47 B

48. 13. Documentation & Ownership Resources: State Boards State Health departments Legislative resources and legal databases Insurance commissioners Your informed telehealth attorney. Regulations That Can Differ Across States 48 48 B

49. 15. Supervision, Telesupervision & Documentation State definitions of supervision & telesupervision can differ. (Also relates to approved modalities.) Some states have a specific number of hours of training required for supervisors to offer services through telehealth. Others do not. Be mindful of requirements of supervisees. Their mandates can differ from yours within and across different states. You must comply with your regulations and guide them to comply with theirs. Understand & reconcile differences between regulations. Regulations & Issues that Can Differ Across States 49 49

50. 50 Interjurisdictional Practice (psychology & addictions) Interstate practice (SW) Interstate compact (counseling) License portability (MFTs) Multistate license (nursing) Interstate licensure (medicine) What are discipline-specific terms for referring to practicing healthcare across state lines and international borders?

51. 51 2020

52. 52

53. 53 https://www.cchpca.org/ IMPORTANT RESOURCE: F ree, federally funded resource for identifying current and future state laws related to interjurisdictional practice.

54. 17. Continuing Education Requirements Some states require specific training to practice telehealth, while others do not. Standard: “What would a reasonable professional have done in a similar circumstance?” Be able to demonstrate that you have obtained formal, documented training including detailed telesupervision training by an approved CME or CE training group for your profession. Make a copy of the course description page (= to a syllabus) to demonstrate content Regulations & Issues that Can Differ Across States 54 54 B

55. 18. Regulations from State Departments of Insurance Providers should ensure that their professional liability insurance covers telehealth services across state lines. Read the fine print in your policy. (Seriously. Read it all.) Write a letter to your malpractice carrier asking for a written response to all your questions. Get all answers to your questions about your telehealth coverage in writing – in plain English. Get a cybersecurity policy. Regulations & Issues That Can Differ Across States 55 55 B

56. Malpractice & Liability Laws - The malpractice and liability laws applicable to telehealth can differ from state to state, affecting how telehealth services are delivered. Malpractice i ns urance companies, then, can be subject to differing laws about how and when they will protect you. Violating a state’s regulations could be grounds for carriers to refuse paying your benefits in a lawsuit. Your benefits (coverage) can be nullified if you are practicing criminally or with criminal intent. Regulations & Issues that Can Differ Across States 56 56 B

57. 19. Professional Liability Coverage (Malpractice Insurance) Let us state the issue overtly: Illegal practice over state lines occurs when you practice without adhering to all state-specific regulations issued by the state’s relevant licensing board(s). Check your policy for fine print that includes any mention of illegal or criminal activity. Write to your malpractice carrier and describe your proposed service, including every state you enter to deliver care. Ask for their approval, coverage, and stipulations. Avoid being the provider or employer who tests these insurance coverage limits. How important is following all these laws to your malpractice coverage? B

58. 58 https://telehealth.org/mental-health-telehealth-across-state-lines/

59. Questions for Your Liability or Malpractice Carrier about Practicing Across State Lines Will you cover me for practicing over state lines? 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?

60. 20. Cultural Sensitivity, Disability & L anguage A ccommodations In some states, the professional or their organization is mandated to provide culturally sensitive, disability and/or language accommodations. In other states, there is no mention of either. Resources: State boards State Health departments Legislative resources and legal databases Insurance commissioners Speak to your informed telehealth attorney. Regulations & Issues That Can Differ Across States 60 60

61. NASW, ASWB, CSWA & CSWE Technology Standards

62. Available as a PDF at: https://www.socialworkers.org/includes/newIncludes/homepage/PRA-BRO-33617.TechStandards_FINAL_POSTING.pdf NASW, ASWB, CSWA & CSWE Technology Standards

63. Multicultural Sensitivity & Diversity Issues Over State Lines 7 Notable Diversity Issues Acceptance & respect Accommodation of beliefs Ethnic & cultural differences Gender equality Physical & mental disabilities Generation gaps Language & communication

64. Multicultural Sensitivity & Diversity Issues Across State Lines Essential aspect of telehealth Screening procedures must be well developed Referral options must be responsibly offered Knowing how to sensitively handle emergencies, including at first visit, process must be error-proof Complaints involving cultural bias are some of the most frequently reported by boards.

65. Cultural Sensitivity or Training for Practicing Over State Lines & Internationally Telehealth poses unique challenges to respecting diversity: People can often present only from “neck up” (when needed, ask people to back away from screen so you can see them more fully). Also ask for a “tour” of their location if appropriate. Many speak a different form of English If “impossible,” telehealth & diversity training is warranted.

66. Disparities Telehealth providers must educate themselves about telehealth and disparities, especially in rural areas. Digital Literacy Local idioms Local religious & political beliefs

67. 21. Definitions of Telehealth Telehealth Modality - Some states have specific regulations about the types of telehealth modalities that can be used (video, audio, telephone, email, text, remote patient monitoring, asynchronous communication). Telehealth Platforms - The approval of telehealth platforms and software may also be subject to state-specific regulations related to privacy, security, and interoperability. Regulations & Issues that Can Differ Across States 67 67 B

68. 22. Registration – some states allow you to register to practice in their state. Based on decades-old practice of professionals traveling across state lines. Limitations can be based on: # of Days (30, 45) = contacts in telehealth terms Geographic distance = # of miles over the state line Regulations & Issues that Can Differ Across States 68 68 B

69. Ethical Issues Ethics Are Built on a Foundation of Legal & Regulatory Adherence

70. 70 The Telehealth.org Tracking Sheet for State Regulations is in your handouts. Share it with your colleagues and ask them to help you. 

71. 71

72. 72 https://telehealth.org/signup

73. 73 Write all involved licensing boards directly to voice your opinions about current legislation. Register with your board to be on their email list to receive news. Comment on documents they send around for comments. Collaborate with your state-level professional organizations who lobby for you. Boards don’t know what you need if you don’t tell them How can providers advocate for telehealth with licensing boards? B

74. 74 Write your elected state officials to voice your opinions about current legislation. Follow legislation through the free newsletters offered by Telehealth.org https://telehealth.org/signup Comment on laws when comments are requested. Legislators don’t know what you need if you don’t tell them Profound repercussions for future of telehealth and interjurisdictional practice What else can providers do to advocate for telehealth? B

75. FREE Licensing Information Review and write to the regulatory board website for your profession. Also write to the regulatory association for the professions that you supervise: ASPPB.org – Psychology AASCB.org – Counseling FSMB.org – Medical (Psychiatry) ASWB.org – Social Work AMFTRB – MFT NCSBN - Nursing

76. FREE Licensing Information Get state-based requirements is this format ( www.statename.gov ) Review regulations on all invovled board websites with an eye to telehealth, even if the word is not mentioned (will take you about an hour per board) Write down everything that you must DO.

77. FREE Licensing Information Develop spreadsheet to track issues across states (see Telehealth.org handout) Put all good links in spreadsheet for easy access later Split states up with a study partner or group to get help filling in your spreadsheet with added states

78. Interjurisdictional Practice Overview Only provide services where licensed. If you make exceptions, be prepared to defend your position thoroughly with arguments you have verified with your attorney. Understand that common sense may be irrelevant. Require every client/patient to attest to their location at every contact. B

79. Interjurisdictional Practice Overview Take screenshots of URLS & webpage content for resources used. Download PDFs, highlight relevant sections & store on desktop as you go. Reference your sources in policy statements and client or patient notes. B

80. How to Get Telehealth Licensing Information Contact state professional associations (ethical or legal office) Join association groups or ask to form one if one doesn’t exist. Join our free Therapist Community Network (TCN)– accessible through the Telehealth.org Digital Training Center. Just looks for it on your dashboard. Details are here: https://telehealth.org/therapist-community-network/

81. Use ChatGPT to Ask Basic Questions Write to your malpractice carrier to ask about your telehealth coverage. C 1994-2021 Telebehavioral Health Institute, LLC All rights reserved.

82. 82 https://telehealth.org/blog

83. Questions? We have covered all required material. Please feel free to go if you must. Otherwise, type your questions below for us to address.

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