Slides for Telehealth How to Legally and Ethically Practice Over State Lines & Inter.pptx

Slide deck for Telehealth.org's How to Legally and Ethically Practice Over State Lines & International Borders

1. Legally & Ethically Practicing Over State Lines & International Borders Marlene M. Maheu, PhD Founder & CEO Telehealth.org [email protected] 619-255-2788

2. Marlene M. Maheu, PhD Founder and CEO of Telehealth.org Published five peer-reviewed telehealth textbooks, 50+ book chapters and journal articles, and 1000+ blog posts found at blog.telehealth.org. Developed 70+ hours of evidence-based and competency-based telehealth training at Telehealth.org, trained more than 66k professionals in telehealth since 1994. Founder and 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

3. And you? Please introduce: Yourself with City and Specialty …

4. Learning Objectives Explain what’s happening with the US Public Health Emergency and how that can impact your ability to work over state lines. List at least one way your malpractice coverage can automatically be nullified, despite your carrier’s claims that you are “covered” for online practice. Outline the 2-step process for legally and ethically practicing over state lines and international borders.

5. Audio-Only Mode Please hold your questions for the Q&A period at the end of today’s training. I will stay as long as it takes after the end of the hour to answer all your questions. Telehealth.org assistants are here to help you with administrative issues, such as not hearing me. TIP: Use a landline.

6. Maximize Your Learning By Turning on your camera Joining the conversation throughout this activity Muting your phone Asking family and friends to stay away

7. 7 How to Find Your Course Completion Certificate Look to the left of your Telehealth.org Digital Training Center screen for platform functions. This is where to access slides, download handouts, review documents, and complete your evaluation and post-test if you are taking CMEs or CEs for this program.

8. 8 What is your #1, most burning question about working over state lines? Please it into the chat box.

9. Dr. Jones Works at a community behavioral health center and sees approximately 25-30 clients/patients per week. Many of them are Medicare or Medicaid beneficiaries. Transitioned all of their clients/patients to telehealth services during COVID While many of the clients/patients in Dr. Jones’s care returned to seeing them in person, about 40% have chosen to continue telehealth. Some of them moved out of state to be with family or other strong support systems and have chosen to remain out of state. Dr. Jones only maintains a license to practice in the original state but has continued to deliver care because of the PHE. Dr. Jones is not sure of the legalities involved but is taking this class to find out.

10. 10 Public Health Emergency

11. https://blog.telehealth.org/reimbursement-repercussions-for-april-2023-end-of-public-health-emergency/

12. End of Public Health Emergency Is Predicted for April, 2023 Thereafter, practicing over state lines will be enforced by the states. To date, licensed professionals have been obligated to complete and affidavit, registration or licensure in every state. Contact each state to determine how you can meet their criteria. Contact your board, too.

13. 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.

14. Regulations for Practicing Over State Lines Are Made by State Licensing Boards

15. Which State Boards Are Involved with Practicing Over state Lines? Licensing boards for your profession or that of your supervisee Several may assert jurisdiction: The board in the professional’s 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. 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

17. 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

18. 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

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

21. 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

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

23. 23 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 Examples What licensing and regulation issues should healthcare providers keep in mind before practicing over state lines?

24. 24 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?

25. 25 https://www.imlcc.org/

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

27. 27 https://movingsocialwork.org/

28. 28 https://counselingcompact.org/

29. 29 https://www.counseling.org/docs/default-source/center-resources/counseling-compact-background-and-faqs.pdf?sfvrsn=baf3292c_2

30. 30 https://www.aamft.org/AAMFT/ADVANCE_the_Profession/License_Portability/Advocacy/MFT%20License%20Portability.aspx?hkey=1faeeaeb-a780-4add-ba09-9b41a144692f

31. 31 https://www.ncsbn.org/compacts/nurse-licensure-compact.page

32. 32 https://www.asha.org/advocacy/state/

33. Ethical Issues

34. 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

35. NASW, ASWB, CSWA & CSWE Technology Standards

36. Opening protocol: Ask client/patient to “attest” to location Document their response Informed consent 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?

37. Can be nullified if a practitioner is practicing “criminally” Over state lines without proper documentation Definition of practice and all applicable laws for each state must be met (e.g., you might need to have a signed client agreement or informed consent for clinician to be considered as providing a professional service worthy of coverage) Write to your malpractice carrier and describe your proposed service, including every state you enter to deliver care How does practicing over state lines affect your malpractice insurance?

38. States typically have a definition of practice. That definition explains what licensees are expected to do. Who decides when healthcare professionals are engaged in a “professional relationship?”

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43. Dependent on state and country Duty to report/warn Inform clients/patients of your remote safety policies in your informed consent process National Conference of State Legislators tracks 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?

44. 44 https://www.ncsl.org/research/health/mental-health-professionals-duty-to-warn.aspx

45. C 1994-2021 Telebehavioral Health Institute, LLC All rights reserved.

46. 46 https://www.cchpca.org/

47. 47 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?

48. Illustrative 2022 California Board of Psychology Questions & Answers to Consider

49. 49 “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?

50. 50 “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?

51. 51 “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?

52. 52 “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?

53. 53 “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?

54. 54 “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?

55. 55 “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?

56. 56 “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?

57. 57 “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?

58. 58 “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?

59. What kinds of things are states doing related to the PHE? 59 California PHE-Related State Rules as of December 16, 2022 Coverage for appropriately provided in-network telehealth services will remain mandatory  for state-regulated commercial health plans as required by  AB 744 , which went into effect in 2021. Payment will remain at parity with in-person services.

60. What kinds of things are states doing related to the PHE? 60 California PHE-Related State Rules as of December 16, 2022 Some private payers will require a physical office address that is not your home address. Some plans may require telehealth credentialing. Medical will continue to allow telehealth, including audio-only. Starting ion 2024, providers may also need to offer services in-person or arrange for in-person care.

61. 61 https://telehealth.org/signup

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

63. 5 Steps to Practicing Legally in Foreign States & Countries

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

65. 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

66. 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.

67. 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.

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

69. Questions for Your Malpractice Carrier about Practicing Over 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?

70. 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.

71. 71 https://blog.telehealth.org/states-may-target-telehealth-abortion-pills-for-remote-abortions/

72. 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

73. Multicultural Sensitivity and Diversity Issues 7 Notable Diversity Issues: Acceptance & respect Accommodation of beliefs Ethnic & cultural differences Gender equality Physical & mental disabilities Generation gaps Language & communication

74. Diversity Sensitivity or Training for Practicing Over State Lines & Internationally Telehealth poses unique challenges to respecting diversity: People can present from “neck up” Many speak a different form of English If “impossible,” telehealth & diversity training are warranted.

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

76. 76 International Telehealth Practice

77. 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. Steadily accumulate that “proof.” Do other countries require that foreigners hold a local license for legal practice in their country?

78. Visit the foreign country’s website, look for translation services. Take screen shots of the country’s website, embassy in Washington DC, and proof Show proof of having tried to contact 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?

79. 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. 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?

80. 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 w/o a foreign license?

81. 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.?

82. 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.

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

84. Approach professional associations and ask them for local referral networks. Many associations have their own referral services. Contact local medical offices. Approach schools. Any of these traditional sources can become a source of referrals for you as well. How can you systematically build a manageable resource network across states? 84

85. Understand the nuances of what your legal and ethical codes say about practicing over state lines. 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. Might be 5-6 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. 85

86. 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 honesty of your bill, which is a request for payment. How to think about billing for services delivered over state lines or in multiple states for the same client or patient? 86

87. Dr. Jones While many of the clients/patients in Dr. Jones’s care returned to being seen in person, about 40% have chosen to continue telehealth. Dr Jones plans to specialize in delivering telehealth services for the CBHO. The administrative staff is in the process of identifying people who moved out-of-state. Dr. Jones plans to apply to the largest of those states for information about how to get properly documented to deliver telehealth care. Dr. Jones has also started sending “outreach” emails to state professional associations in those areas being considered, using a spreadsheet that later will be expanded to include names, addresses, specialty areas, etc. of potential contacts in case emergency care is needed. Dr. Jones now has enough information to ask informed questions and is confident

88. Questions? What else can I discuss about practicing over state lines?

89. Peg: What states currently allow for registration of out of state providers for Behavioral Health (( LCSW, LPC, LMFT) other than Florida? Where can I access an updated list? How do organizations such as Better Health deal with this issue? Lisa: Can you pay taxes in your home state for income received from out-of-state patients, or do you need to pay taxes to each state your patients are residing in?  If I take a course for CEU credit required by Illinois, could that credit be used for NY hours too?  Thank you. Ingrid: Exactly how does one figure out if one is qualified?  For example, if from a non-APA school, but have a license in good standing and a high EPPP score from a specific state, say CA, and wish to treat across state lines due to a rare specialty, how can one get the information if one is allowed to do so legally and insurance-wise?  Thank you Regina: I remember from grad school that clients could receive temporary transitional therapy when relocating to another state to bridge the potential gap in clinical care. The length of time was quite limited though, and I am imagining it was up to 90 days. How long can a patient receive telehealth abroad, on vacation, or when relocating? Thanks for this timely course. I am looking forward to it. Your Questions from the Telehealth.org Discussion Forum 89

90. Gloria: I'm interested in hearing about practicing in third world countries where there are minimal formal organizations of psychologists, such as the Democratic Republic of Congo or Kenya. Rosemary : During the pandemic some of my local clients moved out of state or country and want to continue therapy with me. I am unclear on how feasible this is. Your Questions from the Telehealth.org Discussion Forum 90

91. 91 How to Find Your Course Completion Certificate Look to the left of your Telehealth.org Digital Training Center screen for platform functions. This is where to access slides, download handouts, review documents, and complete your evaluation and post-test if you are taking CMEs or CEs for this program.

92. 92 Write your licensing board 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 behavioral health professionals advocate for telehealth with their licensing boards?

93. 93 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 behavioral health professionals do to advocate for telehealth?

94. How to Find Licensure Information Write to your malpractice carrier to ask about your telehealth coverage. C 1994-2021 Telebehavioral Health Institute, LLC All rights reserved.

95. FREE Licensing Information Look at the regulatory board website for your profession Also write to the regulatory association for your profession: ASPPB.org – Psychology AASCB.org – Counseling FSMB.org – Medical (Psychiatry) ASWB.org – Social Workers AMFTRB – MFTs NCSBN - Nursing

96. FREE Licensing 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 states up with a study partner or group to get help filling in your spreadsheet with added states

97. 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

98. How to Find Licensure Information Visit https://blog.telehealth.org for more than 700 free blog posts.

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