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)
• More than 100 hours of digitized telebehavioral
health training focused clinical, legal & ethical risk
management & compliance
• Served 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
• Lead author of five telehealth textbooks.
4. Learning Objectives
1. Name 10 things you can immediately implement to
manage risk in your online practice.
2. Discuss the special relevance of HIPAA to telemental
health care.
3. 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.
10. What is your #1,
most burning
question about
telehealth law or
ethics?
Please tell me what you
need today.
22. • 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
23. • 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?
25. 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.
26. 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.
27. 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
28. Coalition for Technology in
Behavioral Science (CTiBS)
An Interprofessional
Framework
for Telebehavioral
Health Competencies
(2018)
31. 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.
32. Key elements of
informed
consent?
The key elements of informed
consent typically include:
1. Disclosure of relevant
information
2. Comprehension of that
information
3. Voluntary decision-making
4. Capacity to provide consent.
38. • 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
39. • 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
41. • 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
68. • Use to document the therapist's observations, assessments,
and treatment plans, serving as a tool for continuity of care and
professional communication.
• Types 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
69. 1. Laws for retention and disposal may vary by state. You are
responsible for securely storing and appropriately
destroying these records to maintain patient privacy.
2. 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
70. Case Study
Ankita Asim, a clinical social worker,
has been working with Alex, who
recently experienced a traumatic
event.
71. • 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.
72. 1. Informed Consent: Ankita explains
the possible implications, benefits,
and risks associated with
disclosing the notes, allowing Mark
to make an informed decision.
2. Relevant Information: Minimum
necessary
73. 3. 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.
4. Testimony Preparation: If required,
Ankita helps to prepare Mark by
reviewing notes and collaborating with
attorney.
74. 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.
75. 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.)
76. 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.
78. 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.
79. Psychotherapy Note
1. Confidential Content: Therapist's
observations, insights, and
impressions during psychotherapy
sessions, which may not be included
in the patient's regular treatment
record.
2. 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.
80. Psychotherapy Note
3. Longitudinal Perspective: May include
ongoing themes, patterns, and
progress over time; track the
effectiveness of interventions,
treatment goals, and modifications.
4. 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.
82. • 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
152. • 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?
153. • 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?
155. • 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?
157. 1. Verify your licensure in your own state (enter your
license number into your state website).
158. 2. 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
159. 3. 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.
160. 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.
161. 5. Contact your malpractice carrier and get a written explanation
of your coverage. Have an attorney interpret their response.
170. 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…
17
0
171. 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
17
1
180. 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.
191. 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.
192. 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
199. 1. Telephone vs video –
supervisor has much less
info to work with.
2. Easy for supervisees to
keep you in the dark if you
are not techno-saavy.
3. Consider improving your
software to one that allows
you to move forward and
backward in the video
recording.
4. Take a full program of
training to understand all
your telehealth
requirements.
5. Georgia example.
•How is telesupervision
different from in-
person?
199
200. 1. 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
201. • 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
203. 1. Always use proper
procedure & modifier
codes for telehealth or
telephone.
2. 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.
3. 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
205. 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/
206. 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/
207. Medicare In-Person Visit
Requirement Starting
January 1, 2025
• For behavioral health only
• One in-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.
220. Learning Objectives
1. Name 10 things you can immediately implement to
manage risk in your online practice.
2. Discuss the special relevance of HIPAA to telemental
health care.
3. Describe licensure issues regarding providing
telemental health care across state boundaries.
221. Suggestion
Organize Your To-Do List
• Prioritize your activities
• Focus on this week, next week
• Review weekly with colleagues
if you can
221