As of March 19, 2020 our way of daily living has been changed forever by the advent of Covid19.
Online Services has become a common accepted modality to maintain health and safety during the Pandemic and thereafter. Expedience and consistency have become lifelines for those in need. Doing therapy online has proven to be safe and distinct in meeting legal and ethical guidelines in counseling as office or face to face meetings. Know that if you engage in telehealth services, I use HIPAA compliant platforms thereby ensuring confidentiality.
What is Telehealth?
Under California law, “Telehealth” is the delivery of health care services using information and communication technologies to consult, diagnose, treat, or educate a patient while the patient is at an “originating site” and the health care provider is at a “distant site.” The “originating site” is the site where a patient is located at the time health care services are provided through a telecommunications system.
The practice of telehealth involves providing services in one of two ways. The first mode is through a “synchronous interaction” which is a live, real-time, interactive, audiovisual, two-way communication. An example of a live, real-time, interactive communication is therapy performed over the telephone or through videoconferencing. The second mode is an “asynchronous interaction” which is not a real-time interaction.2 An example of an asynchronous interaction is providing therapy via e-mail. Keep in mind that routine e-mail and instant messaging conversations, where professional therapy services are not rendered, are excluded from the definition of telehealth.
Can an LMFT in California provide psychotherapy to a patient outside the state of California?
A California marriage and family therapist license allows the holder to practice psychotherapy in the state of California. California law states: “Marriage and family therapists provide a crucial support for the well-being of the people and the State of California.”3 The BBS acknowledges that licensing requirements vary by state and individuals who provide psychotherapy or counseling to persons in California are required to be licensed in California. Thus, a California license does not – in and of itself – allow a therapist to practice in any jurisdiction other than in California. The location of the patient determines the applicable law.
Currently, there is no reciprocity between California and any other state which would allow a California LMFT to practice in a different jurisdiction. All fifty states, including DC, regulate the practice of marriage and family therapy. Consequently, there may be legal implications when a provider wants to continue to offer services to a patient who is outside the state of California.
On one hand, it seems counterintuitive that a therapist would be prohibited from maintaining a therapeutic relationship with a patient who leaves the state. A patient’s diagnosis or condition does not disappear when a patient goes on vacation, takes a business trip, or relocates to another state. In such times, a patient may want and/or need the continued support of their therapist even without the physical face-to-face connection.
However, each state is responsible for licensing and regulating the profession of marriage and family therapy. As such, each state’s licensing or regulatory board determines who may practice marriage and family therapy in that state. So, while the inclination to continue a therapeutic relationship with a patient who is in another state may feel – and be – ethically justifiable, it is important to be mindful of the risks involved in providing services to an individual in another state without being appropriately licensed by that state; or, otherwise authorized by that state’s regulatory board acting in accordance with that state’s laws and regulations.
One option for a therapist whose client is either temporarily out of state, or who has moved to another jurisdiction, is to help the client find a meaningful resource who can continue treatment or offer emergency services.
Online Therapy Practices
As telehealth practice has grown in popularity so has the presence of online therapy businesses.
Regardless of how an online business, refers to, or identifies its services, a California licensed provider who offers therapy online to individuals who are physically located in another state should understand the licensing requirements and regulations of the state where the client is physically located at the time services are rendered.
Professional Ethical Standards Regarding Electronic Therapy
CAMFT Code of Ethics, Section 1.4.2 pertains to electronic therapy (e.g., therapy by telephone or internet). The CAMFT Code of Ethics recommends the following:
- Ensuring telephone or video conferencing is an appropriate and suitable means of rendering psychotherapeutic services
- Informing patients of the potential risks, consequences, and benefits of telehealth, including but not limited to, confidentiality, clinical limitations, transmission difficulties, and the ability to respond to emergencies
- Obtaining informed consent as required by the California Telemedicine Act.11
There are no conclusive studies indicating telehealth is either any less effective than traditional face-to-face counseling; or, that telehealth should not be used to treat an individual with a particular condition or diagnoses.12 In deciding to utilize telehealth to render psychotherapy, a number of factors should be assessed to determine whether telehealth is appropriate. For example, mental health professionals should assess the patient’s skill level in using technology; whether the patient can comfortably express himself or herself through a telephonic or online modality; whether the technology allows the clinician to identify subtle physical cues, body language, or voice intonations; and, whether the patient’s personality type, presenting complaints, risk factors, or diagnosis impact the patient’s suitability for phone or internet therapy. Further, the clinician and the patient should discuss what strategies and resources will be relied upon in the event of an interruption of services caused by technical difficulties or a potential medical emergency.13 Ultimately, the appropriateness of providing therapy over the telephone or through video conferencing is something that should be continuously assessed throughout treatment.
It is important to inform patients about the benefits and risks of telehealth at the outset of the professional relationship. Discussing limits on confidentiality is paramount. While telephone or video conferencing is a flexible alternative to meeting face-to-face, the patient should be aware of the potential risks to the confidentiality of telehealth treatment sessions. There are a number of situations that could compromise the confidentiality of the therapeutic conversation. For example, someone may listen in on the conversation; or, be in the same room as the patient but outside the view of the camera. Thus, the patient should feel comfortable in the environment where they are receiving services and in setting appropriate boundaries to ensure his or her own privacy.
Formerly, the law required patients to sign a telehealth specific written consent form prior to receiving treatment via telehealth. However, this requirement was perceived as creating an unnecessary barrier to care. While written consent is no longer mandated, the patient’s verbal consent should be documented in the record. In 2014, the law was amended to allow providers to secure consent for telehealth services the first time an appointment is made and removed the requirement that providers get consent prior to each telehealth session. 14
References from CAMFT: https://www.camft.org/ias/COS/Resources/Attorney_Articles/Alain/The_Basics_of_Telehealth.aspx