Maheu+ica+2014+legal+&+ethical+strategies+for+successful+distance+counseling

Legal & Ethical Strategies for
Successful Distance Counseling

Learning Objectives
• 1. Describe 3 ethical dilemmas related to Skype,
Google and Facebook, blogging and the ethical codes
that help practitioners think through those dilemmas.
• 2. Discuss the legal issues related to practicing over
state lines or international borders, HIPAA and
informed consent when practicing online.
• 3. Outline 3 key elements of a risk management plan
for working online with clients to deliver care.

Disclaimer
• I am an MFT and clinical psychologist, not an attorney, physician or
Information Technology specialist. The information I present is my
best attempt to bring you timely and relevant information in a rapidly
evolving area. I therefore make no warranty, guarantee, or
representation as to the accuracy or sufficiency of the
information contained in my training.
• My goal is educational only. I seek to outline the issues and alert you
to what's happening, including legal, ethical and other risk
management issues. You are encouraged to seek specific advice
related to your circumstance from your qualified authorities.

Housekeeping
Schedule
Restrooms
Questions
WiFi
Twitter @ica

What’s going on?
• Technology
• Health Care Reform
• Distance Counseling

Our planet is
re-tooling
as is
psychology

Real-Time Telemedicine
Patient in rural ER gets benefit
of local care plus remote
consultation with specialists.
Remote doctor examines a
patient’s inner ear from a remote
location.

Distance Counseling & Other Services

Step 1: Training
Step 2: Referrals
Step 3: Patient Education
Step 4: Legalities
Step 5: Assessment
Step 6: Direct Care
Step 7: Reimbursement
OCPM: Online Clinical Practice Management

Telehealth vs. Distance Counseling
(working model not to scale)
Behavioral
Telehealth
Disciplines, including
Distance Counseling,
Training &
Supervision
Telehealth
Health
Professions
Education
Administration
Evaluation
Research
Homeland SecurityPublic
Health
Consumer
Education
(and Self-
management)
Regional
Health
Information
Sharing

What are the Current
Models for Distance Services
in Counseling and Other
Disciplines?

Traditional Behavioral Telehealth Model

Traditional Behavioral Telehealth Model
• Hub-and-spoke model
– Only work with previously identified clients/patients
who have had an in-person assessment
– Detailed and documented referral requests
– Detailed health record at fingertips of clinician
– Client/patient is at the “originating site”
– Clinician is at the “distant” site
– Community collaborator is available
• Client/patient is pre-trained by staff
• Technology is stable
– IT staff is available during entire time of connection to
client/patient

Online Norm vs. Traditional Behavioral
Telehealth (or Telemental Health)
Traditional Online Therapy
• Mostly Email & Chat
• Anonymity
• Accept self-referral online
• Disclaim Responsibility w/
Website Disclaimers
• No Clear Channels for
Mandated Reporting
• No Patient Records
Traditional Behavioral Telehealth
• Video
• Verify clients/patients
• Rely on referrals from clinical
offices
• Use informed consent
processes/documentation
• Engage in mandated reporting
• Document as required by law
2014

Online Norm vs. Traditional Behavioral
Telehealth (or Telemental Health)
Traditional Online Therapy
• No Contact with Other
Treating Clinicians
• No Authentication of
Consumer / Professional
• No Emergency Backup
Procedures
• Misunderstanding of
Clinical Processes (suicide)
• Scant Research for
Unsupervised Settings
Traditional Telemental Health
• Obtain signed releases and
collaborate
• Verify identify of both
Consumer and Professional
• Establish emergency backup
plan and personnel prior to
delivering care
2014

What’s happening?

Disruptive Technology
Disruptive technology is a term coined by Harvard Business School professor Clayton M.
Christensen to describe a new technology that unexpectedly displaces an established technology.
Betty Friedan
• 1963 book The Feminine
Mystique
• Sought to have women be
accepted in existing world
Gloria Steinman
• Sought to transform society

Society for Technology & Behavioral Health
Innovation,
Implementation &
Consultation
COMMUNICATION &
COMMUNICATION
NETWORKS
(e.g., Internet, Blogging, Social
media; Cybernetics [e.g.,
Biosensing/ Feedback]; Social
networking)
COMPUTING METHODOLOGIES
(e.g., Artificial Intelligence;
Natural Lang. Processing;
Robotics; User Computer
Interfaces [e.g., Computer
Vision Tracking, Haptic
Interfaces]; Computer
Simulations [e.g., Virtual
Human Agents/Avatars &
Environments];
Microcomputers; 3D Imaging;
Software [e.g., Video Games]
HEALTH IT & INFORMATICS
(e.g., Big Data; Controlled
Vocabs [e.g., ICD-10]; Decision
Making & Support; Data
Mining; Electronic Health and
Personal Health Records;
Electronic Data Privacy,
Security and Integrity; Health
Information Exchange;
HITECH; Information Storage
& Retrieval; Interoperability
TELECOMMUNCATIONS
(e.g., Electronic Mail;
Telepsychology; Remote
Sensing; Wireless, & Training
Technology; Telephones [e.g.,
Mobile Phones, mHealth,
Messaging]; Video
Conferencing; Interactive Voice
Response)
Practice Science
Education Public Interest
OTHER TECHNOLOGIES
(e.g., Biotechnology,
Nanotechnology,
Nanomedicine)

Benefits of Traditional Video-Based Telehealth*
• Increased client satisfaction
• Decreased travel time
• Decreased travel, child & elder-care costs
• Increased access to underserved populations
• Improved accessibility to specialists
• Reduced emergency care costs
• Faster decision-making time
• Increased productivity / decreased lost wages
• Improved operational efficiency
• Maheu, Pulier, Wilhelm, McMenamin & Brown-Connolly. (2004). The mental health professional and the
new technologies. Erlbaum, New York.

The Is Video Teleconferencing
(VTC) Effective?
• Yes
– Medicare & Medicaid required to pay
• Outcomes are relatively comparable, especially for follow-up care
(intakes are still a matter of state law)
• Literature for specialty groups is sparser, but positive (pediatrics)
– Also effective for supervision
– Can improve some ways service is rendered
– See www.telehealth.ORG/bibliography
• BUT, traditional VTC isn’t the same as Skype

Recent Supporting Research
• Godleski, Darkins & Peters reported in April of 2012 that
hospital utilization in psychiatric populations at the Veterans
Administration were decreased by an average of 25% since
the use of telehealth. It is worthy of note, however, that:
– This study focused on clinic-based, high-speed videoconferencing and
did not include any home telehealth encounters. Mental health
patients were referred for telecare by clinicians. Typically, telemental
health services were provided remotely at community-based
outpatient clinics by mental health providers of all disciplines located
at larger parent VA hospital facilities. Equipment consisted of either
room or personal desktopvideoconferencing units transmitting at 384
kbps or greater.
Godleski, L. Darkins, A. & Peters, J. Outcomes of 98,609 U.S. Department of Veterans Affairs patients
enrolled in telemental health services, 2006–2010. Psychiatric Servcies, 63(4). 383-385.

Recent Supporting Research
Backhaus and colleagues (May, 2012) reported in their abstract
of a meta-analysis that:
• 821 potential articles were identified, and 65 were selected for
inclusion.
• The results indicate that VCP is feasible, has been used in a
variety of therapeutic formats and with diverse populations, is
generally associated with good user satisfaction, and is found
to have similar clinical outcomes to traditional face-to-face
psychotherapy.
– Videoconferencing psychotherapy: A systematic review. Backhaus, Autumn; Agha, Zia;
Maglione, Melissa L.; Repp, Andrea; Ross, Bridgett; Zuest, Danielle; Rice-Thorp, Natalie
M.; Lohr, James; Thorp, Steven R. Psychological Services, Vol 9(2), May 2012, 111-131.
doi: 10.1037/a0027924

SYNCHRONOUS TELEHEALTH TECHNOLOGIES IN PSYCHOTHERAPY FOR
DEPRESSION: A META-ANALYSIS
Janyce E. Osenbach, Ph.D.,∗ Karen M. O’Brien, Ph.D., Matthew Mishkind, Ph.D., and Derek J. Smolenski,
Ph.D., M.P.H.
2013 Meta-Analysis Comparing In-person and Synchronous Telehealth Modalities for Depression
Published in DEPRESSION AND ANXIETY 00:1–10 (2013)

Primary Focus: Not the technology, but
rather, the service we deliver (also allows
for reimbursement)
Nonetheless, Different Modalities
Require Different Skill Sets
• In-person
• Text (email, chat, texting)
• Audio
• Video

It is ethical
to have a
page on
Facebook
or a similar
advertising
page on
Google+ ?
35

Social Media Is Not Private
• “Anything you say, post, link to, comment on, upload,
etc., can and may be used against you by your peers,
colleagues, employer, potential employers, fellow
members, and so on.”
• APA http://www.apa.org/about/social-media-policy.aspx
37

OCPM Step 1: Professional’s Self Care
• Boundaries
– Office hours
– Unplug
• Reputation
management
• Community of like-
minded pros
9/21/2012 38

All Existing Legal
& Ethical
Rules
Apply

http://www.americantelemed.org/docs/default-
source/standards/practice-guidelines-for-video-based-online-
mental-health-services.pdf?sfvrsn=6

Boundaries of Competence
42
Multicultural Issues & Diversity

Multicultural /Multlingual Issues
Issue
• Global nature of the
Internet – worldwide
audiences
• Multicultural issues are
quite visible in the
document, but English as a
second language issue are
not mentioned
• Rarely mentioned anywhere
How to measure?
• Search online for various
instruments that might be
valid for your population
• Look for English proficiency
tests
– Free
– Easy to take
– Get to know the norms
• Spoken English is different
from written English

In-Person Contact
APA Telepsychology Guidelines:
• In addition, psychologists may consider some
initial in-person contact with the client/patient
to facilitate an active discussion on these
issues and/or conduct the initial assessment.
p11

Do you see well enough?
•Image Resolution
• ATA Guidelines
Are you conducting an intake
or follow-up?
• Most of the scientific literature
described VTC as being used for
follow-up care after a primary
licensed professional does an intake.
• How can you compensate for being
able to assess glassy eyes, tremors,
gait disturbance, sweaty palms,
body odor, other signs of poor
hygiene or serious mental illness
when no local professional is
available?

ACA Code of Ethics (2005)
• A.12.c. Inappropriate Services
– When technology-assisted distance counseling
services are deemed inappropriate by the
counselor or client, counselors consider
delivering services face to face.
–How do you decide what’s appropriate?
Copyright 2012 TeleMental Health Institute, Inc. All rights reserved.
9/21/2012 46

ATA
Patient Appropriateness for videoconferencing-
based Telemental Health
• To date, no studies have identified any patient
subgroup that does not benefit from, or is harmed
by, mental healthcare provided through remote
videoconferencing. Recent large randomized
controlled trials demonstrate effectiveness of
telemental health with many smaller trials also
supporting this conclusion. p9

Caution – Consider Context
Online Norm vs. Standard of Care
– No Contact with Other
Treating Clinicians
– No Authentication of
Consumer /
Professional
– No Emergency Backup
Procedures
• Misunderstanding of
Clinical Processes
(suicide)
• Operating w/o Needed
Research for
Unsupervised Settings

Caution – Consider Context
Online Norm vs. Standard of Care
• Mostly Email / Chat vs. Video
• Anonymity / No Patient Records
• Avoid Responsibility w/ Website
Disclaimers
• No Clear Channels for Mandated Reporting

TMHI Client & Patient Selection
• Study the evidence base (research)
• People with almost all diagnostic symptoms have
been treated with traditional telehealth
• Treatment to the home has not yet identified
which groups are too risky
• Understand differences between treatment of
individuals in 1 setting vs, another (hospital vs.
car, park, bed etc.)
• Consider compliance problems
9/21/2012 50

Who is Responsible
• …if you make a referral
to a long-trusted
colleague who suddenly
conducts distance
counseling with a client
you referred?
• …what if the client
suddenly
decompensates and
makes a suicide
attempt?

Know the Practices of Your Colleagues
• Ask
• Keep them informed of
your practices and
rationales
• Suggest training when
needed
• Document training
suggestions when
appropriate

Step 1: Training
Step 2: Referrals
Step 3: Client Education
Step 4: Legal Issues
Step 5: Assessment
Step 6: Direct Care
Step 7: Reimbursement

Technical Issues
• Discuss the technical requirements with the
patient prior to initiating treatment
• Consider the level of technology experience of
the patient (train if needed)
• Have a back-up plan if the video connection is
lost
– telephone -- landlines are best, but cell phones
are better than nothing

Tech Check
• Tech check – review potential technology and
infrastructure issues prior to initiating the
delivery of care
– adequacy of bandwidth (the rate of data transfer)
– reliability of telehealth equipment (computers, monitors,
video cameras, audio equipment, etc.).
– loss of connection due to inadequate transmission
bandwidth or other equipment failure during a clinical
crisis situation
– insufficient camera resolution or environmental problems
(adequacy of room lighting and microphone placement)

Explain technical aspects (camera position,
lighting , audio, noise, clock, etc.)

What are the types of
problems that clients /
patients have reported when
working with clinicians using
videoconferencing?

Client/Patient Training
• Email /Texting/Telephone/Video
• Social networking – social media policy
• File exchange
• Computer repair
• Clinical records
• Insurance
• Reports
• Lateness / Missed sessions
• Non-compliance/Avoidance

Clinicians have been reported:
• Eating
• Taking personal cell phone calls from family
• Burping without excusing themselves
• Picking teeth
• Combing hair
• Rocking incessantly in their seats
• Putting feet on the desk
• Taking a shirt off
• Mindlessly tapping the desk with objects
• Being half way off the screen

What should I do when
someone enters a client's /
patient's room during a call?

If someone enters the client/patient room:
• What would you do in your brick-and-mortar
practice?
– Stop the session / resume control of the
interaction
– Ask the client/patient to speak privately with you
• Obtain permission to continue
• Ask for an agenda
• Reschedule for another day/time

What should I do when
someone enters my room
during a call?

If someone enters your room:
• What would you do in your brick-and-mortar
practice?
– Stop the session / resume control of the
interaction
– Excuse yourself if it is an emergency and step out
of the room
– Reschedule for another day/time

Why use initial protocols
when videoconferencing?

Initial Protocols
Educate client/patient about the need for routine opening protocols
that might include:
• Your name and location, name of clinic, hospital, agency ?
• Client/patient name and location ?
– direct phone number for emergency services of today’s location
(tested?)
• Reason for meeting ?
• If anyone else is in the room or within earshot ?
• Are children cared for ?
• Any expected interruptions ?
• Door locked?
• Room scan?
– Scan your room with your camera and ask patient to do the same
• Anything else of note with your population?

Can I get paid for the time
used in helping a client /
patient set up and manage
their equipment?

Paid Tech-Time?
• No payment for client/patient set-up time
• “Facility fees” are available on a per-session
basis for Medicare and Medicaid services that
are reimbursable
– See: Reimbursement Strategies Increasing
Authorization and Payment (3 CEs/CMEs)

How do I handle technical
issues created by my video
teleconferencing (VTC)
system during a call?

Tech Problems During a Call
• Practice before you work with clients/patients
• Relax – trust your training
• Have an agreement with your client/patient
that you will call each other using a
designated telephone number
• Always have that phone number on hand
when you conduct a session
• Have an agreement about who will call the
other

What is a community
champion and when is it
appropriate to use one?

Community Champion
• Local collaborator can be helpful for:
– providing information about the patient’s history
– monitoring mood and behavior
– assisting with treatment planning and coordination
– coordination with local 911 service when needed
– provide an additional mechanism for contacting
patients if a connection becomes lost
– provide on-site technical assistance
– provide support to a patient during emergency
situations

Community Champion
• Educate your client/patient about use of a local
collaborator such as a family member or close friend
– Enter name and contact information into informed consent
document
– Stipulate under which conditions these people will be
contacted
– Outline emergency procedures and when collaborator will
be notified
– Clearly define expected roles and responsibilities of local
collaborators/champions
– Encourage your client/patient to discuss their choice of
champions directly, before you contact them

What are the must-dos for
community champions and
informed consent to
minimize my risks?

Community Champion
• Assess when using a local collaborator may
not be advisable:
– Safety of local collaborators must be carefully
considered – may be best to rely on trained 911
responders
– Be cognizant of potential deleterious effect of
disclosures made during emergency management
on patient confidentiality and relationships,
especially in small communities

Dr. Trow vs. Oklahoma Medical Board
• Relevant law
• The case
• Skype
• Lessons to be learned

Full style:
State of Oklahoma ex rel.
Oklahoma Board of Medical
Licensure and Supervision v.
Thomas Edward Trow, M.D.,
License No. 10255, case No. 11-11-
4439 (Sept. 12, 2013)

"Physician/patient relationship” in OK
• “…a relationship established when a physician agrees
by direct or indirect contact with a patient to diagnose
or treat any condition, illness or disability presented by
a patient to that physician, whether or not such a
presenting complaint is considered a disease by the
general medical community. The physician/patient
relationship shall include a medically appropriate,
timely-scheduled, actual face-to-face encounter with
the patient, subject to any supervisory responsibilities
established elsewhere in these rules.” (emphasis
added)
– OAC 435:10-1-4
– Does not say: “in person”

IC: OK Telemedicine Act, OAC
§36‐6804
• A. Prior to the delivery of health care via telemedicine, the
HCP who is in physical contact with the pt shall have the
ultimate authority over the care of the pt and shall obtain
IC from the pt. The IC procedure shall ensure that, at least,
all the following info is given to the pt:
• 1. A statement that the individual retains the option to
withhold or withdraw consent at any time without
affecting the right to future care or treatment or risking the
loss or withdrawal of any program benefits to which the
individual would otherwise be entitled (emphasis added)

IC: OAC §36‐6804, 2
• 2. A description of the potential risks, consequences,
and benefits of telemedicine;
• 3. A statement that all existing confidentiality
protections apply;
• 4. A statement that pt access to all medical info
transmitted during a telemedicine interaction is
guaranteed, and that copies of this info are available at
stated costs, which shall not exceed the direct cost of
providing the copies; and
• 5. A statement that dissemination to researchers or
other entities or persons external to the patient-
practitioner relationship of any patient‐identifiable
images or other patient‐identifiable information from
the telemedicine interaction shall not occur without
the written consent of the patient (emphases added)

IC: OAC §36‐6804, 3
• B. The pt shall sign a written statement prior to the
delivery of health care via telemedicine indicating that the
pt understands the written info provided pursuant to
subsection A of this section and that this info has been
discussed with the HCP or [his] designee.
• C. If the pt is a minor or is incapacitated or mentally
incompetent such that the pt is unable to give informed
consent, the consent provisions of this section shall apply
to the pt’s rep. The consent provisions of this section shall
not apply in an emergency situation in which a pt is unable
to give IC and the pt's rep is unavailable… (emphases
added)

IC: OAC §36‐6804, 4
• For purposes of the delivery of mental health care via
telemedicine, the use of telemedicine shall be
considered a face‐to‐face, physical contact and
in‐person encounter between the health care provider
and the patient, including the initial visit.
– Services provided by the Mental Health Dept.: initial
evaluation may be virtual
– Mental health services provided by others: initial
evaluation must be in-person
– Other forms of health care: initial evaluation must be in-
person

Telemedicine for Mental Health (OK
2008 Policy)
• Telemedicine technology is limited to consultations,
psychotherapy, psychiatric diagnostic interview
examinations and testing, discharge planning and
pharmacologic management. An interactive
telecommunications system is required as a condition
of the use of telemedicine.
• The following shall not be considered telemedicine:
• (1) Phone conversation (including text messaging)
• (2) Electronic mail message
• (3) Facsimile (fax)
• (4) Store and forward

2008 Policy), 2
• The telemedicine equipment and transmission
speed must be technically sufficient to support
the service provided. If a peripheral diagnostic
scope is required to assess the patient, it must
provide adequate resolution and audio quality for
decision making substantially equivalent to a
face‐to‐face encounter. Staff involved in the
telemedicine visit need to be trained in the use of
the telemedicine equipment and competent in its
operation. (emphasis added)

2008 Policy), 3
• The physician who has the ultimate responsibility for
the care of the patient must obtain written consent
from the patient, in accordance with state law, that
states they agree to participate in telemedicine. The
consent form must include a description of the risks,
benefits and consequences of telemedicine and be
included in the patientʹs medical record
• …
• Physicians providing mental health care services via
telemedicine shall be held to the same standards of
care as required in the medical community.
– Emphasis added

Trow: OSBMLS Telemedicine
Guidelines
• Ok. medical practice act requires initial in-person visit before MD can
prescribe Rx
– Exceptions:
• Emergencies
• DOs
• Interactive telecommunications system required
– TM network standards: all technical, confidentiality requirements under state
and federal law
• Permissible telemedicine functions:
– Consultations
– Psychotherapy
– Psychiatric diagnostic interview exams and testing
– Discharge planning
– Pharmacologic management
• NOT TM: phone, email, fax, store-and-forward

Trow: Stipulated Facts
• Dr. Trow is an unemployed 65 yo pain management
physician
• Orthopedic problems make travel difficult for him
– Used mail, fax, and phone from home
• RN often served as telepresenter at clinics
– Records kept there but not, as Oklahoma telemedicine
guidelines require, at Trow’s home office
• 10/20/11: DO reported 3 pts getting large doses of Xanax
• 11/8/11: TL, daughter of deceased, addicted, 62 yo pt RC,
complained Dr. Trow prescribed CDS for RC
– RC died of HBP and COPD
• No toxicology studies

Stipulated Facts, 2
• 8/17/12 Ok. HC Authority (“OHCA”) letter:
– No contract with OHCA
– Using unapproved equipment
– No informed consent
– Inability to produce 2 of 10 requested charts
– Overprescribing CDS
– Limited documentation; no physical exam
– Verbal orders not countersigned
• 3/13/13: OHCA reported D was
– 1) seeing Sooner Care patients via Skype and
– 2) writing for controlled substances without an in-person evaluation
• OHCA “is the primary entity in the state of Oklahoma charged with
controlling costs of state-purchased health care.”
– SoonerCare: Oklahoma Medicaid

Stipulated Facts, 3
• Dr. Trow caused NO patient deaths
• Dr. Trow billed OHCA for Skype services; not an approved
telemedicine modality
• Trow did not see all pts, even by Skype.
• 11/9/12: OHCA letter #2: similar to 1; more detailed
– No initial contact with patients
– Inadequate records
– HIPAA violations
– Inadequate supervision of nurses
– Failing to heed drug screen results
– VOs
• 11/15/12: OHCA terminated SoonerCare

Procedural Posture
• Disciplinary matter, not a
private (malpractice)
claim
– ?Possible in future?
• Defendant pled guilty
– Waived right to full hearing
• D admitted violating
OHCA telemedicine
guidelines: improper
equipment; no proper
contracts
– Stated he thought those
duties fell to his employer

Conclusions of Law:
Unprofessional Conduct
• Dishonorable conduct
likely to deceive or harm
public
• Prescribing without
– Proper doctor-patient
relationship;
– Adequate PE
• Overprescribing
controlled substances
– No documentation of
medical need
• Inadequate records

Consequences
• License suspended
• MD to take prescribing
course
• No CDS prescribing until
– 1. Course completed
– 2. Dr. Trow meets with
Board Secretary
• MD is on probation
• Reported to National
Practitioner Data Bank

New Ok Definition: “Face-to-Face
Encounter” by TM
• “It is the position of the OSBMLS that the face-
to-face encounter required by OAC 435:10-1-
4…to establish a physician/patient relationship
includes real-time telemedicine encounters with
audio and video capability…[T]o qualify as a face-
to-face encounter set out in this definition, the
telemedicine audio and video capability must
meet those elements required by CMS.” OSBMLS,
9/25/13,
– http://www.okmedicalboard.org/download/705/Tele
medicine_PositionStatement.pdf

Oklahoma Law is In Flux
• November 7, 2013: Board held a public forum to
discuss the use of telemedicine in Oklahoma
• Then, public comment
– First public comment period ran overtime; a special
session may be needed to complete the process
• Then: legislature
• Finally, Governor’s office

What are the take-
home lessons from
the Trow case?

Take-Home Lessons
• Case reflects Oklahoma law only
– But Oklahoma is relatively telemedicine-friendly (“SoonerCare views
telemedicine no differently than an office visit or outpatient
consultation..” OHCA Policies and Rules, 317:30-3-27, revised 7/1/13)
– Other states could do the same or worse
• Tort liability presumably remains possible
– Though wrongful death claims might be problematic
– Is Dr. Trow insured against this risk?
• Determine what establishing the physician-patient relationship
requires in the relevant jurisdiction
– Is a virtual visit adequate?
• Be sure to perform the type of initial contact required by your state
law for distance counseling

Take-Home Lessons (Cont.)
• Obtain and document informed consent
– In Oklahoma, must be in writing
– Check your state’s laws
• Maintain proper records
• Board’s main focus was on excessive prescribing, not
Skype per se
– Does Oklahoma forbid Skype for telemental health
services?
• Nevertheless: Use Skype with caution, if at all
– No claim of HIPAA compliance
• Be especially cautious with controlled substances
– Potentially acceptable: hospice

FSMB, as of 8/12
• 10 state boards issue a special purpose license,
telemedicine license or certificate, or license to
practice medicine across state lines
• 57 boards + DC Board require that TM physicians be
licensed in the state in which the patient is located
• Minnesota allows physicians to practice TM if they are
registered to practice TM or are registered to practice
across state lines
– http://www.fsmb.org/pdf/grpol_telemedicine_licensure.p
df.
•

Full Discussion
• The previous slides were from a webinar given
1/20/2014 through the TeleMental Health
Institute.
• Guest speaker for that webinar and author of
many of the previous set of slides is Joseph
McMenamin, MD, JD, McMenamin Law
Offices, Richmond Virginia

Specific Informed
Consent Processes and
Documentation

A.12.a. Benefits and Limitations
• Counselors inform clients of the benefits and
limitations of using information technology
applications in the counseling process and in
business/ billing procedures.
• Such technologies include, but are not limited to,
computer hardware and software, telephones,
the World Wide Web, the Internet, online
assessment instruments and other
communication devices.

A.12.g. Technology and Informed Consent
• As part of the process of establishing informed
consent, counselors do the following:
– 1. Address issues related to the difficulty of maintaining
the confidentiality of electronically transmitted
communications.
– 2. Inform clients of all colleagues, supervisors, and
employees, such as Informational Technology (IT)
administrators, who might have authorized or
unauthorized access to electronic transmissions.

Verify with a Local Telehealth Attorney
• Use next suggestions, but
I am not an attorney.
• Develop your document
and verify with your own
informed, local attorney
• Be aware that many
association attorneys may
not be yet adequately
well-versed in telehealth
issues
• A good expert should cost
you from $500 - $800 to
review your agreement

Informed Consent
• Represents a “meeting of the minds”
– Information is influenced by many factors, including
• Client/Patient’s capacity for absorbing information
• Time limits
• Clinician’s schedule
– Subject matter is often complex and technical
– Clinician thinks she is speaking English
– Client/Patient may be under stress (or may assert so
later)
– Mental illness
• Document only serves as important evidence

Informed Consent: Function of State
Law
• Specific statutes govern informed consent in
telehealth
• Who’s state law controls?
• Solution: assume that the law of the client/patient
residence will most likely be applied
• More conservative approach is to determine the
law in both your and your client/patient’s state and
follow the mandates of the more stringent law

TMHI Informed Consent Documentation Basics
• Date
• Diagnosis
• Outline of
intervention
• Risks and benefits of
each technology used
• Risks and benefits of
competing
approaches
• Including no service

• Emergency Resources and
Plan including names and
contact information for
local, trusted person(s) to
be contacted at the
discretion of the clinician
• Document advantages and
disadvantages of using
technology
• Document evidence-base
supporting counseling plan
• Document client
preferences re: technology

• Confidentiality and limits
thereof as related to
mandated reporting (suicide,
homicide, abuse)
• Fees, if any
• Statements* similar to:
• My questions have been
answered to my
satisfaction in language I
understand
• As of the time of my
signing, all blanks have
been filled in
• Document method &
procedures for data storage
• Document adherence to local
and distant regulations
* Obtain full legal review with a local telehealth
attorney prior to using any TMHI sample wording
with clients either verbally or in in your informed
consent document.

• Some risks may not yet be unknown*
• No physical exam*
• Identify both the clinician’s & client’s/patient’s
physical location
• Statements* such as: Professional will rely on
information provided by the client/patient and by
any on-site practitioners or other sources
• Potential problems could arise with electronic
transmission in telepractice:
• distortion, delays, interceptions, interruptions
• Document all communications with client (written,
audio, video or verbal)
* Obtain full legal review with a local telehealth attorney prior to using any
TMHI sample wording with clients either verbally or in in your informed
consent document.

• Discuss the purpose of
remote contact
• Inform clients of who
will have access to their
email address, phone
number, or any other
contact information
• Inform the client of who
else might contact the
client on your behalf
• Discuss multi-cultural
and diversity issues

• Describe the specific roles of any consultant or local
referring practitioner and who will have ultimate
authority over the client’s treatment
• Discuss whether client information will be stored in a
computerized database
• Provide written procedures for various types of
follow-up when client does not appear for remote
consultation
– Time limit for non-response before collateral person will
be contacted if professional is concerned

• Describe how deficiencies electronic equipment
could possibly cause interference with diagnosis or
treatment
• Make provision for non-receipt of email, delayed
receipt, problems with servers, or unannounced
changes in the schedule of email communications
• Mention how easily human error could lead to
incorrectly delivered messages or other unforeseen
events

• Document technical requirements with the
client prior to initiating treatment
• Document preferences and level of technology
experience of the client (train if needed)
• Agree upon alternatives if video or audio
connections are lost

Emergencies
Have a plan.
• Discuss carefully
• Write plan in your informed
consent document
• Develop prior relationships
with local community:
– Physician
– Family
– School personnel
– Other leaders (AA, religious?)
– Emergency response team
– Know community resources
(hospitals, drug/alcohol
treatment facilities, etc.)
– Know your local collaborators
Know who and when to call for
local assistance.
• Inform client of when you will contact
local leaders, what you will tell them.
• Cover your termination procedure ( i.e.,
“I will make 2 telephone calls, leave you
2 messages, send you a letter in surface
mail with a copy to your physician.”)

NBCC: Standards For Distance Professional
Services
• NCCs shall carefully adhere to
legal regulations before providing
distance services. This review
shall include legal regulations
from the state in which the
counselor is located as well as
those from the recipient’s
location.
• Given that NCCs may be offering
distance services to individuals in
different states at any one time,
the NCC shall document relevant
state regulations in the
respective record(s).

NBCC: Standards For Distance Professional
Services
• Boundaries of
competence
– NCCs shall provide only those
services for which they are
qualified by education and
experience. NCCs shall also
consider their qualifications to
offer such service via distance
means.
– Are counselors competent to
deliver traditional service in
technical environments?
Technical and clinical training
may be needed.

Privacy, Confidentiality, Diversity
• Privacy & Confidentiality
– Understand your
technology (email,
texting, video) and its
clinical repercussions
related to privacy and
technology
• Diversity
– Multi-cultural, multi-
lingual, religious, LGBT,
and other issues

Service to the “Home”
• Scientific evidence base
for contact to the home is
much thinner, less
reliable than traditional
telehealth
• Risk management is a
serious concern
• Likelihood of lurkers,
intruders or interruptions
is increased
• Develop signs, code
words or phrases to
signal something is amiss

TMHI Clinical Competence
Client Selection
• Study the evidence base
(research)
• People with almost all
diagnostic symptoms have
been documented as
successfully treated with
traditional telehealth
• Clients experiencing severe
anxiety, flagrantly psychotic
symptoms or
suicide/homicide intent
may not be optimal choices
while symptom patterns are
exacerbated

TMHI Clinical Competence
Client Selection
• Most of the studies mentioned
above include the assistance
of a local collaborator
• Treatment to the home has
not yet identified full range of
risk
• Understand differences when
delivering care to clients in
different settings (hospital vs.
car, park, bed etc.)
• Establish procedures to
minimize attendance &
compliance issues

Levels of Security
Interjurisdictional
Licensure Issues
2014

20/20: A Vision for the Future of Counseling
4) Creating a
portability system for
licensure will benefit
counselors and
strengthen the
counseling profession.

Inter-jurisdictional
Practice
Licensing Boards that may
assert jurisdiction:
• The one in the
professional’s state(s)
of licensure
• The one in the
client/client’s state of
location at time of call
• Both
Safest Practice:
• Provide services only
where licensed
• Require client to attest
to his or her location on
every call2014

Inter-jurisdictional
Practice (cont.)
Special telehealth and in many cases,
“telemedicine” laws have led the way
• Prescription-writing initiatives led to
development of laws in the 90’s
• Reimbursement practices for
Medicare 7 Medicaid
• 32 states now mandate in-person
assessment prior to distance contact
• Special informed consent laws also
rapidly evolving
• Regulatory Case
• Oklahoma case of Dr. Trow
• No in-person
assessment
• No informed consent
• No HIPAA-compliant
technology (he used
Skype)2014

Licensure Requirements for Professional Counselors – 2014
What’s New for 2014
(page 4)

Licensure Requirements for Professional Counselors – 2014
What’s New for 2014 (page 4)

Special Telehealth Licenses or Certificates
Licenses could allow an out of state provider
to render services via technology in a foreign
state, or it allows a clinician to provide
services via telehealth into a state if certain
conditions are met (such as agreeing that
they will not open an office in that state.)
http://www.fsmb.org/pdf/grpol_telemedicine_licen
sure.pdf

States with Laws Mandating Private Insurance Coverage of Telemedicine

Special Telehealth Licenses or Certificates
• Alabama
• Louisiana
• Minnesota
• Montana
• Nevada
http://www.fsmb.org/pdf/grpol_telemedicine
_licensure.pdf
• New Mexico
• Ohio
• Oregon
• Tennessee
• Texas

Innovative Models
• National Council of State Boards of Nursing
(NCSB)
• Federation of State Medical Boards (FSMB)
• Association of State and Provincial Psychology
Boards (ASPPB)

Levels of Security
Licensure
Portability
Legislation
2014

TELEmedicine for MEDicare Act, 2013
• HR 3077, the “TELE-MED Act” was introduced
Sept. 10 in the House by Reps. Devin Nunes,
R-Calif., and Frank Pallone, D-N.J. Nicknamed
the TELE-MED Act, seeks to update current
licensure laws for Medicare beneficiaries, the
number of whom is expected to rise to 81
million by 2030

TELEmedicine for MEDicare Act, 2013
• In the case of a Medicare participating physician or practitioner who
is licensed or otherwise legally authorized to provide a health care
service in a State, such physician or practitioner may provide such a
service as a telemedicine service to a Medicare beneficiary who is in
a different State, and any requirement that such physician or
practitioner obtain a comparable license or other comparable legal
authorization from such different State with respect to the provision
of such health care service by such physician or practitioner to such
beneficiary shall not apply.
• If passed, the bill will give licensing or authorizing states
enforcement powers and require the Secretary of the Department
of Health & Human Services to solicit input from “relevant
stakeholders” in order to provide telemedicine guidance for states.

Legal Suggestions
• Counsel each other &
document those
conversations
• Communicate often to
your local, state and
national professional
associations – let them
know what you need
• Put information in writing
• Write to your malpractice
carrier and describe your
proposed service before
investing too much time
or $$
• Check with an informed,
local attorney who
specializes in telehealth
to verify that all aspects
of your telepractice are in
compliance with state law

Other Legal & Ethical
Issues for Distance
Counseling

Duty to Report / Duty to Warn
• (v) Failing to comply with the child
abuse reporting requirements of
Section 11166 of the Penal Code.
• (w) Failing to comply with the
elder and adult dependent abuse
reporting requirements of Section
15630 of the Welfare and
Institutions Code. CA Business and
Professions Code Sections 4989.54 (cont.)

Practical Application: Check on
Technology
• Tech check – review potential technology and
infrastructure issues prior to initiating the
delivery of care
– bandwidth (the rate of data transfer)
– reliability of equipment (computers, monitors, video
cameras, audio equipment, etc.).
crisis situation

Opening Protocol*
• Identify yourself and your geographic location
• Ask your client/patient to do the same
• Audio/video check (e.g., Do you hear & see me clearly?)
• Is there anyone in your room or within ear-shot today?
(Agree on safety code words, signals or phrases)
• Is there anything else I might notice and find of interest if I
were in the same room with you today?
• Has there been an emergency in your environment today?
• Is there anything else I should know about before we begin
talking today?
* Obtain full legal review with a local telehealth attorney prior to using any TMHI
sample wording with clients either verbally or in in your informed consent document.

Local Collaborators or Champions

Mention Other Safety Issues
• Have an addendum to
your informed consent
document
– Include social media
policy statements* that
fit your client
population, such as:
– I will not “friend” you on
Facebook or other social
media sites
– I will not respond to you
on sites such as Yelp
* Obtain full legal review with a local
telehealth attorney prior to using any
TMHI sample wording with clients
either verbally or in in your informed
consent document.

Safety Issues to Consider
• Is there access to firearms in home-based
care?
• Discuss firearm ownership, safety, and the
culture of firearms
• Be prepared to negotiate firearm disposition
with patients and consider involvement of
family members when appropriate
• Use of trigger safety lock devices is an option

• Assess potential technology and infrastructure
issues prior to initiating the delivery of care
– adequacy of bandwidth (the rate of data transfer)
– reliability of telehealth equipment (computers, monitors,
video cameras, audio equipment, etc.).
crisis situation

• Identify and use of a local collaborator such as a
family member or close friend of a patient
– Enter name and contact information into informed
consent document
– Stipulate under which conditions these people will be
contacted
– Outline emergency procedures and when collaborator
will be notified
– Clearly define expected roles and responsibilities of
local collaborators
– Consider discussing these issues with family members
directly

• Local collaborator can be helpful for:
– providing information about the patient’s history
– monitoring mood and behavior
– assisting with treatment planning and coordination
– coordination with local 911 service when needed
– provide an additional mechanism for contacting
patients if a connection becomes lost
– provide on-site technical assistance
– provide support to a patient during emergency
situations

• Assess when using a local collaborator may
not be advisable:
– Safety of local collaborators must be carefully
considered – may be best to rely on trained 911
responders
– Be cognizant of potential deleterious effect of
disclosures made during emergency management
on patient confidentiality and relationships,
especially in small communities

• Discuss the technical requirements with the
patient prior to initiating treatment
• Consider the level of technology experience of
the patient (train if needed)
• Have a back-up plan if the video connection is
lost

Intake Summary
• Explain & sign informed consent document
• Conduct a formal intake – no shortcuts
• Meet in-person or video, identify geographic location, organizational
culture, take full history, medications and medical conditions, mental
status and stability, use of substances stressors, treatment history,
support system, use of other technology, suicide/homicide intent
• Identify psychological diagnosis
• Decide if, then which technology is appropriate / Assess technical
competence / ability to arrange appropriate setting
• Obtain names of all other key providers, get appropriate releases
• Verify contact information (address, phone, email)
• Have emergency plan in writing

Telemental Health:
HIPAA, HITECH
& Your State Law

HIPAA
• Three Rules:
– Transmission
– Privacy
– Security
Three HIPAA
Rules:
• Transmission
• Privacy
• Security

HIPAA Privacy Rule
• Data are “individually identifiable” if they
include any of the 18 types of identifiers,
listed below, for an individual or for the
individual’s employer or family member, or if
the provider or researcher is aware that the
information could be used, either alone or in
combination with other information, to
identify an individual:

HIPAA Privacy Rule (cont.)
1. Name
2. Address (all geographic subdivisions smaller than state, including street address,
city, county, zip code)
3. All elements (except years) of dates related to an individual (including birth date,
admission date, discharge date, date of death and exact age if over 89)
4. Telephone numbers
5. Fax number
6. Email address
7. Social Security number
8. Medical record number
9. Health plan beneficiary number
10. Account number
11. Certificate/license number
12. Any vehicle or other device serial number
13. Device identifiers or serial numbers
14. Web URL
15. Internet Protocol (IP) address numbers
16. Finger or voice prints
17. Photographic images
18. Any other characteristic that could uniquely identify the individual

Email
• A 2009 study by the
American Psychological
Association showed that
9.8% of psychologists polled
reported using email for
clinical purposes with clients
(Jacobsen & Kohout).*
• Is such use appropriate
without training?
• * Jacobsen, T. & Kohout, J. (2010). 2008 APA Survey of
Psychology Health Service Providers: Telepsychology,
Medication and Collaboration. APA Center for Workforce
Studies.

Email
• HIPPA Omnibus Act
allows us to have email
contact without
meeting usual HIPAA
standards when risks
are fully disclosed in
• Be aware of inherent
problems with soliciting
email contact from
websites and
directories.

The HIPAA Compliant Email
Companies

Current Surveys
The Professional survey:
ttp://tinyurl.com/kpnfh75
The Consumer survey:
http://tinyurl.com/mb86oav
Research team includes: Drs. Marlene Maheu,. Robert Glueckauf, Ken Drude, Eve-Lynn Nelson

Skype’s Most Recent Hacking – November 2012

Is Skype Reliable?
Skype tiles &
pixelates, the audio
gets tinny, echoes
develop, and often
calls drop entirely.
Sometimes
consumers can see
you and hear you,
without your
awareness.

HIPAA requires an “audit trail.” Skype doesn‘t
provide audit trails – and isn’t obligated to ….

Skype’s Privacy Policy
• Skype may gather and use info about you…
– Identification data (e.g. name, username, address, telephone number,
mobile number, email address)
– Electronic identification data (e.g. IP addresses, cookies)
– List of your contacts and related data
– Content of instant messaging communications, VMs, video messages
• Skype uses its own cookies for a variety of purposes, including to
– Provide internal and customer analytics and gain statistics and metrics
about our websites
• Skype’s analytics, ad-serving and affiliate partners may also set and
access cookies on your computer
• Skype will take appropriate organizational and technical measures
to protect the personal data and traffic data provided to it or
collected by it with due observance of the applicable obligations
and exceptions under the relevant legislation

Skype and Health Privacy
• AES 265-bit encryption
• Free
• Access to patient’s environment
BUT
• Skype makes no claim that its services can be used in a
HIPAA-compliant fashion
• Skype does not offer a BA Agreement
• Cannot verify transmission security
• No audit trails
• No breach notifications
• No offer of technical support
• Frequently dropped calls
– Emergencies?

OCPM Step 3 Legal Issues:
Which Technologies to Use?
• No Guesswork Needed

Internet-based, VTC Companies
Claiming HIPAA Compliance*
• Access Psychiatry
• Adobe Connect
• Behavior Imaging Solutions
• CopeToday
• Consult a Doctor
• Counsol.com
• EasyShare VC
• eCounseling
• E Mental Health Center
• Forefront Telecare
• GEMS
• GoToMeeting
• iCouch
• Interactive Care
• iTel
• IVE (cloud)
• Lifesize (Logitech)
• MDLive
• MyTherapyNet
• Revation
• Secure Telehealth
• SecureVideo.com (FREE)
• Shepell fgi
• Smart House Calls
• Soltrite
• Via3
• VisHealth (Visual Telehealth)
• Vsee (FREE)
• VirtualTherapyConnect
• WeCounsel
* TMH Institute has partnered with some of these companies and will receive a referral fee if you mention TMHI. You may also get an added discount.

What makes you a “covered entity”?

• Use HIPAA compliant
technologies and
develop written
processes
– Document policies
• Security & privacy policies
– Repairs
– Staff training
– Breach notification, etc.
HIPAA Policies

HIPAA “Final Rule” January 17, 2013
• Business associates of covered entities are directly liable
for compliance with HIPAA Privacy and Security Rules’
requirements. Includes contractors, subcontractors and
business service companies working for health care
providers, (e.g., companies providing electronic health
records software, teleconferencing, data back-up and
storage, billing, transcription and other IT services).
• Raises the maximum penalty for data breaches from a
previous cap of $250,000 to a maximum penalty is $1.5
million per violation.

HIPAA “Final Rule”
• Infrastructure, documentation,
and procedures for
information privacy and
security, and data encryption
and disposal will have to be
evaluated and brought into
compliance.
• Companies need to provide
formal security training to all
employees, designate a
security official and implement
appropriate business associate
contracts with their own
subcontractors.

HIPAA “Final Rule”
• When HIPAA was first passed in 1996, most health care
practitioners, hospitals and insurance companies scurried to bring
themselves into compliance with the new standards. In the face
of these final rules, business associates will have to engage in the
same process.
• HHS is stepping up enforcement efforts.
• See Federal Register available online at
http://federalregister.gov/a/2013-01073, and on FDsys.gov

• All Business Associates in health
care must sign an agreement
stating their adherence to HIPAA
standards
• Transactions
• Security
• Privacy
• True for any service you hire
• It is now enforced by the HITECH
ACT
HIPAA, Business Associates & HITECH

HITECH
• If aware of a potential
breach of protected
health information:
– Conduct risk assessment
– Mitigate breaches
– report them to affected
clients, the federal
government, and in
some cases, the media

HITECH
Implement or update
privacy and security policies
and procedures:
• Need policies to be
written (a paragraph is ok)
• Staff education
• Breach procedures
– Consult your attorney
– 500 or more records
 notify media

HITECH
Do not disclose treatment
information to your client’s
health insurance carrier for
they have paid out-of-
pocket, unless the disclosure
is required by law

HITECH
• Clients may ask for copies
of their electronic health
records in electronic form.
• For example, you cannot
make a unilateral decision
to download and print
electronic records and
send the printed version
to a client who requests
them.

HITECH
Email
• Send PHI in unencrypted e-
mail only if the client is
advised of the risk and still
requests use of email as a
means of transmission

What are risks of sending
unencrypted email?

HITECH
• There are additional new
restrictions on marketing
and sale of PHI, which
should be included in
counselors’ HIPAA policies
and procedures and
Notice of Privacy Practices
if relevant.

HITECH
Update your Notice of Privacy
Practices:
• OCR and the Office of the
National Coordinator for
Health Information
Technology released a
Model Notice of Privacy
Practices, get it here:
http://www.hhs.gov/ocr/priv
acy/hipaa/modelnotices.html

HITECH
NPP
• Make available to existing
clients on request
• Post on your website
• Display in a prominent
location in your professional
premises
• Provide copy to all new
clients

HITECH
Update Business Association
Agreements (BAAs)
• Contractors &
subcontractors
– Billing
– Data storage

HITECH
• Many states have their
own privacy laws, which
can be more stringent
than federal law HIPAA &
HITECH.
• Consider obtaining a legal
review of your HIPAA
policies, procedures and
other documents by your
local attorney.

Where can you get all
the needed HIPAA
forms?

Enforcement
The most common types of
covered entities required
to take corrective action:
• Private Practices
• General Hospitals
• Outpatient Facilities
• Health Plans (group health
plans and health insurance issuers) and
• Pharmacies
http://www.hhs.gov/ocr/privacy/hipaa/enforcement/highlights/inde
x.html

http://www.counseling.org/docs/ethics/aca-hipaa-hitech-9-23-13-compliance-date.pdf?sfvrsn=4

Privacy
Cross-over
Technologies
Many people send
text messages over
Skype. Do they
count?

Safety Tips
Some large text-
messaging system
vendors marketing to
health care
professionals don't
bother with HIPAA, and
may leave you at risk.

Global Smart Messaging Suite
• How text messaging was
utilized for reminders and an
educational tool to ensure
adherence to patient self-care
behavior
• Results of the study showing
positive outcomes in patients
receiving text messages
• How AT&T’s Global Smart
Messaging Suite can be
applied to similar use cases for
highly secure messaging

Other Platforms
• Engaging targeted
audiences with text
messaging has become
a cost effective tool in
health and wellness
management.
• Utilizing encryption
technology in support
of HIPAA compliance
allows PHI to be shared
for maximizing the
value of information to
improve self-care
behavior.

Safety Tips
Most cell phones message
are unencrypted.
Encryption is required when
transmitting any form of
protected or Personal
Health Information (PHI) via
text messaging.
Use an encryption program.

Remedy for Breaches
Under HIPAA, when a device
used for text messaging is
lost, any text message about
a clinical, billing or
administrative exchange can
be considered a breach of
privacy, and a violation of
that consumer's
confidentiality.
The compromised individual
must be informed in writing.

Safety Tips
The Australian
Psychological Society
advises against the
use of slang and
emoticons when
communicating with
clients and patients
in text messages.

Safety Tips
Download your text
messages from your cell
phone into your patient
files.
You can find software for
this function online.

Safety Tips
Be aware that you can
text the wrong person
in your address book
with information that
shouldn't be shared
with unauthorized
parties.

Safety Tips
All text messages
reside on your SIM
card in your phone,
even if you erase
them from your
visible message area.

Stolen Phone Safety
SAFETY TIPS
• Password protect your phone as
soon as you receive the device.
• Change your online and
voicemail passwords often.
• Protect your service. Add a
security passcode to your online
account.
• Download device protection
and privacy apps for your
messaging or smartphone.
• Don't text - just drive!
• Learn how to back up your SIM
card contacts.

Empirical Guidance for Text Messaging?
• Where do you find
research?
– http://telehealth.org/
• Look at:
– funding sources
– meta-analyses

Security Suggestions
• Don’t Download Any Clinical Data
• Authenticate
– Passwords to lock; passwords to access networks
– Biometric authentication is on the rise
• Use Antiviral and Malware programs
– ” CounterACT is a security control platform that
automatically identifies what devices and users are on a
network, controls access to the network, blocks threats,
remediates security violations at endpoints, and measures
compliance to an organization's security policies.

http://www.counseling.org/docs/vistas/multiple-assessment-methods-and-sources-in-counseling-ethical-considerations.pdf?sfvrsn=4

Copyright 2009
TeleMental Health Institute, Inc.
215
215

APA Ethics Standard 9: Assessment
• 9.02 Use of Assessments - research based, valid, reliable
“for populations tested”
• 9.03 Informed Consent in Assessments
• 9.05 Test Construction – use proper procedures
• 9.06 Interpreting Assessment Results
• 9.07 Assessment by Unqualified Persons
• 9.09 Test Scoring and Interpretation Services
• 9.10 Explaining Assessment Results
• 9.11 Maintaining Test Security

OCPM Step 5: Clinical Assessment
• Be aware of language
limitations across
distance
– Use English proficiency
tests to measure
language
comprehension
• Written language
• Spoken language
218

Private Pay
• Google’s Helpouts
Set your own rate by-the-minute
Google takes 20% / You keep 80%
2. Offer your services for a flat-rate
45 minutes for $75
10 minutes for $20
• Self-pay models will become
more prevalent / Risk will
increase
• Blog discussion:
http://telehealth.org/blog/go
ogle-steps-into-telemental-
health/

Where to Get Reimbursement for Telemental Health?
Contractual & Grants Direct Services
Government Services
US Department of Education Medicare
Department of Corrections Medicaid (based on state)
Department of Defense Veteran Health Administration
Indian Health Service
NIH, NIMH, SBIR, State Programs Bureau of Prisons in Department of Justice
Private Foundations

Where to Get Reimbursement for Telemental Health?
Private Pay / Fee for Service Private Insurance
General These 16 states now mandate payment:
California, Colorado, Georgia, Hawaii,
Kentucky, Louisiana, Maine, Maryland,
Massachusetts, Michigan, New Hampshire,
Oklahoma, Oregon, Texas & Vermont  13
more states are pending since Jan.1, 2013
Niche (smoking, drug/alcohol etc.) CPT code approval
Boutique (high-end services, rich & famous)
Self-help
“Apps”

Access regular updates at:
www.telehealth.org/mandated-states
http://telehealth.org/mandated-states
Keep informed by getting our newsletter:
http://telehealth.org/newsletter-signup

OCPM Step 7: Reimbursement
Medicare & Medicaid Reimbursement
–Psychiatrists, Psychologists and Social
Workers but not counselors yet
• Action item for counselor advocates: work with
Mike Thompson’s office, located in CA)

2014 Reimbursement Bill
• As part of the 2014 National Defense Authorization
Act, service members transitioning into civilian life are
eligible to receive 180 days of health insurance
coverage for services provided through telehealth. Rep.
Glenn Thompson (R-Pa.) pushed for the bill, specifically
citing its importance in helping service members
receive treatment for Post Traumatic Stress.
• "All too often, symptoms related to Post Traumatic
Stress do not appear until eight to 10 months after
deployment," Thompson said.
• https://www.govtrack.us/congress/bills/113/hr
1960/text (see section 704)

Medicare Billing and Reimbursement
• Limited to rural and Health provider Shortage Areas (HPSA)
• Modifiers:
– “GT” for interactive audio and video
telecommunications system
– “GQ” for store-and-forward applications
• Failing to use appropriate modifier code may constitute
Medicare fraud
• Debate about how to identify location of services
• Many billing services bill inapprorpriately

To download,
go to this
webpage:
Telehealth.org
/CPA2013

How and when are
new services added
to the growing list of
reimbursable
services?

Adding New CPT Codes
• CPT codes originate in the Office for Medicare
and Medicaid Services (CMS)
• Annual call for data to support new codes
• Large professional associations such as the
American Telemedicine Association help
organize and submit data for new codes to
CMS
• Decisions are published in the National
Register every November

When is credentialing
required for
reimbursement and
how is that best
accomplished?

Credentialing
• Needed for payment by Medicare, Medicaid and
3rd party carriers
– Similar to being credentialed when we sign onto
managed care companies
• The credentialing body examines and documents:
– Licensure
– Malpractice coverage
– History
– Specialty areas / required training
– Other areas as needed

Which 3rd party
insurers are paying,
and where?

3rd Party Carriers
• Largest barrier is practitioner reluctance
• Most large groups are paying
• State-dependent
• No consistent data (Study by ATA just now in
publication for sample across disciplines 
inconsistent patterns)
– Difficult to make predictions

Are rates for
telemental health
different from in-
person care?

Rates
• Traditional telehealth:
– About the same as in-person care
• Private Pay
– Whatever the market will bear

Which CPT codes
need to be used?

CPT Codes
• Medicare, Medicaid, and 3rd Party Payers
– Differ by Payer
• Contact your payers and ask them to send you their list
of CPT codes for telemental health
• Get your information in writing

CPT Codes for TMH
• Individual psychiatric interview
• Individual psychotherapy
• Individual & group health & behavior
assessment & intervention
• Neurobehavioral status examination
• Pharmacologic management
• Smoking cessation

Smoking Cessation and CPT codes
• CPT code 99406 (Smoking and tobacco use cessation counseling
visit; intermediate, greater than 3 minutes up to 10 minutes)
• CPT code 99407 (Smoking and tobacco use cessation counseling
visit; intensive, greater than 10 minutes)
• HCPCS code G0436 (Smoking and tobacco cessation counseling visit
for the asymptomatic patient; intermediate, greater than 3 minutes,
up to 10 minutes)
• HCPCS code G0437 (Smoking and tobacco cessation counseling visit
for the asymptomatic patient; intensive, greater than 10 minutes)
http://archive.aweber.com/tmhinews/CDqmc/h/New_T
elehealth_CPT_Code_Approved.htm

Centers for Medicare and Medicaid
Services (CMS)
• G0396 and G0397 -- Alcohol and/or
substance (other than tobacco) abuse
structured assessment (for example, AUDIT,
DAST) and brief intervention, 15 to 30
minutes and intervention greater than 30
minutes, respectively.
• G0442 -- Annual alcohol misuse screening, 15
minutes
• G0443 -- Brief face-to-face behavioral
counseling for alcohol misuse, 15 minutes

Centers for Medicare and Medicaid
Services (CMS)
• G0444 -- Annual depression screening, 15
minutes
• G0445 -- High-intensity behavioral counseling to
prevent sexually transmitted infections, face-to-
face, individual, includes: education, skills
training, and guidance on how to change sexual
behavior, performed semiannually, 30 minutes
• G0446 -- Annual, intensive behavioral therapy
for cardiovascular disease, individual, 15 minutes
• G0447 -- Face-to-face behavioral counseling for
obesity, 15 minutes

Distant vs. Originating Sites
• Distant Site – where you are
• Originating Site – where your client/patient is

TMH CPT Code Modifiers
• - GT
• Most insurance carriers will only reimburse
“GT” coded services for telemental health
– Some don’t require modifiers
• Always contact carrier to know rather than
assume that you or your billing agent know
how to proceed

CMS Eligible Providers
• Physicians
• Nurse practitioners (NP)
• Physician assistants (PA)
• Nurse midwives
• Clinical nurse specialists (CNS)
• Clinical psychologists (CP)
• Clinical social workers (CSW)
– (CPs and CSWs cannot bill for psychotherapy services that
include medical evaluation and management services under
Medicare.
• Registered dietitians or nutrition professionals
• (notice that counselors are not included)

Which "location of
service" category
gets reimbursed
most frequently?

Location of Service
• Speak with payer before billing
• Indicating the service was rendered in the
“home” is likely to lead to payment rejection
• Service to the home has not yet been
approved by many payers
• Indicating service was in your office may or
may not lead to payment

What's a reasonable
fee to request for
telemental health?

Reasonable Fees
• Typically, fees for TMH are the same as in-
person
• For CMS, can add $24 per session for “facility
fees”
• Whatever the market will bear
– New Internet models such as Google’s “Helpouts”

Are reimbursement
rates discipline-
specific in
telemental health?

Fees Across Disciplines
• Disparities exist across disciplines with
Medicare, Medicaid and 3rd Party Payers
– Psychiatry
– Psychology
– Counseling – not yet covered
– Social work
– Behavior analysis – not yet covered

Are reimbursement
models relevant if I
have a self-pay
practice?

Self Pay
• Reimbursement Models are irrelevant
• Concierge services springing up
– “Self pay practitioners are the most likely group to
success in health care reform” (Robert McGrath,
TMH Summit: Health Care Reform: How to Get
Paid)

Which telemental
health practice
models get paid the
most?

TMH Practice Models
• Traditional hub-and-spoke models
• Servicing Health Care Shortage Areas (HPSAs)

Is telephone work
reimbursable under
new telemental
health
opportunities?

Telephone-based Models
• Dependent on state definitions of telehealth
• Contact your payer and ask how to bill for
telephone
– Why bill accurately?
• Insurance fraud is considered a very serious offense
• In some states, insurance fraud is considered a
“criminal activity”
• Being found guilty of insurance fraud can lead to the
forfeiture of malpractice coverage

How is inter-state
practice relevant to
reimbursement?

Inter-state Practice & Reimbursement
• Most often, professional must be properly
licensed in the geographic location of the
client/patient at the time of contact to
practice legally
– If practicing illegally, you may be committing
insurance fraud
– Insurance fraud may lead to forfeiture of
malpractice coverage the time of the contact

How is Health Care
Reform changing
the playing field for
reimbursement in
general?

Health Care Reform
• Most significant upheaval and reorganization
of US healthcare system we are likely to see in
our lifetimes
• Law was effective January of 2014
• 60 million new people will be eligible for US
government-backed health care in the US
• No extra money

How is private
industry and
consumer demand
impacting
telemental health?

Private Industry & Consumer Demand
• Non-healthcare companies coming into the
market with “disruptive technologies”
– Disruptive technology is a term coined by Harvard
Business School professor Clayton M. Christensen
to describe a new technology that unexpectedly
displaces an established technology
• Can expect many more companies to jump in

Disruptive Technology
Betty Friedan
• 1963 book The Feminine
Mystique
• Sought to have women be
accepted in existing world
Gloria Steinman
• Sought to transform society

Private Industry & Consumer Demand
• Non-healthcare companies coming into the
market with “disruptive technologies”
– Google’s “Helpouts”
– Phone companies
• mHealth
– 5.6 billion people have cell phones
– 2 billion have internet connections

Evidence-based Models
• Where might you earn a
legitimate income?

Specialty Schools
& Services
• Special Needs
• Autism
• Residential Treatment
Centers
– Drug & Alcohol
– Other

Rural Hospitals
Rural Hospitals

Migration ModelMilitary & Veteran’s
Administration

Private
Companies
Serving
Consumers
Online*
• CopeToday
• MDLive
• SecureVideo
• VirtualTherapyConnect
• WeCounsel
* TMH Institute has partnered with some of these companies and
will receive a referral fee if you mention TMHI. You may also get
an added discount.

Migration Model
• Start with your current clients
• Select those who are reliable,
have good support systems
and with whom you have a
good working relationship
• Consider their diagnosis
• Take the time to prepare them
• Plan in-person sessions at
regular intervals
• Do not work through their
secretaries or others

Professional Training
• Clinical Competencies
– Department of Defense
(DoD)
– Ohio Psychology Board
– Professional Associations
• Society for Technology &
Behavioral Health
– TeleMental Health Institute
• Technical Competencies
– Association for Counselor
Education and Supervision
(ACES)

ACES Technical Competencies
• Technical Competencies
For Counselor
Education:
Recommended
Guidelines For Program
Development (2007)
• http://files.acesonline.n
et/doc/2007_aces_tech
nology_competencies.p
df

TeleSupervision
http://telehealth.org/ica

mHealth

Today’s teens use
media an average
of:
• 10 hours and 45
minutes
• every day
• 7 days per week*
*Kaiser Family Foundation, 2010

Selecting Smartphone Apps
• Empirical support for
theory
• Empirical support for
app
• Utility
– User ratings
– Peer review
– Blogs
– Ease of Use
– Confidentiality / Security

Future?

Health & Behavioral Care in 20 Years
• Mobile devices and peripherals will
deliver most health and mental health
care
–Sensor-based information gathering
• Mirrors, scales, vests, chairs, mattresses, steering
wheels, exercise equipment, etc.
–Self-report

• Mobile devices will be networked into central
database that will correlate all real-time data with
your genetic profile:
– as reported by you, family members, friends and
neighbors who share your environment; and
– demographics of people who share your habits,
lifestyle, and personal preferences for food, drink,
exercise;
– medical conditions and medication;
– combined with latest empirical evidence about each
source

• Data will be complied into recommendations
that will deliver medications, foods other
ingestible substances and behavioral
prescriptions in ways that will help remedy
diseases and problems before they can even
be noticed now.

Remote Monitoring Technologies
• Over the next 25 years, remote monitoring
technologies are projected to save nearly $200
billion in the US, particularly by managing chronic
diseases:
– reduce costs for caring for the elderly in rural areas by
25 percent
• 62.7 % of polled hospital personnel reported
increased productivity for mobile clinicians and
staff
• 38% reported productivity gains of 5% to 20%, and
• 10% reported productivity gains of 45 to 60 %
http://www.brookings.edu/~/media/research/files/papers/2012/5/22%
20mobile%20health%20west/22%20mobile%20health%20west.pdf.

Exercise: If we have
time…

The American Red Cross reports that on average, “30 – 40 percent of
people who are direct victims of the disaster experience one or
more mental health disorders after the event, such as PTSD,
depression and anxiety.”
In disasters that directly affect thousands, local and community
mental health resources could not conceivably accommodate an
increased treatment demand of this magnitude.
American Red Cross (2012). Disaster Mental Health Handbook: Disaster Services.
Disasters & Mental Health

Distance Counseling Summary Exercise

Lac Megantic, Quebec
Photo by Simon Villeneuve used under Creative Commons license

Image printed in BBC News, US & Canada, July 10, 2013

Photo printed in BBC News, US & Canada, July 10, 2013

What if … you were the 3 year-old child witnessing this disaster?

What if …you were a five year old in this resort village?

What if you were a grade school child in this disaster?

What if … you were a teen in this disaster?

What if … you were parents of a young family in this disaster?

What if … you were an elderly person in a nursing home in this disaster?

What if you were waiting for fire fighters to find your missing loved one?

What if … you were a fire fighter in this disaster?

Levels of Security
Resources
2014

Get Expert Advice
• Consultation from topic
experts in telehealth
• Professional Training
• Also seek the aid of an
experienced billing
professional and/or
accountant if you have
any financial questions

TMHI News http://telehealth.org/sign-up/

To Keep Up To Date
• TMHI faculty blog about these issues from a
mental health perspective as the news breaks
• Options:
– Visit Blog at www.telehealth.org/blog
• Receive RSS feed
– You can also receive free weekly newsletter that
gets sent to your in-box:
http://telehealth.org/sign-up/

References
• Biba, E. (2005, February 17). Lost your cell phone? Call a cab! PC World.
Retrieved June 26, 2010 from
http://www.pcworld.com/printable/article/id,119702/printable.html
• Borland, John. Breaking GSM with a $15 Phone … Plus Smarts. Wired,
December 28, 2010. www.wired.com/threatlevel/2010/12/breaking-gsm-
with-a-15-phone-plus-smarts.
• Cellular Telecommunications and Internet Association (CTIA). (2010). US
wireless quick facts. Retrieved June 26, 2010 from
http://www.ctia.org/advocacy/research/index.cfm/AID/10323
• comScore. comScore Reports October 2011 U.S. Mobile Subscriber Market
Share. Press release. December 2, 2011.
www.comscore.com/Press_Events/Press_Releases/
2011/12.

References
• Connell, M., Drogin, E., Foote, W., & Sturm, C. (2010). The American
Psychological Association’s Revised “Record Keeping Guidelines”:
Implications for the Practitioner. Professional Psychology: Research and
Practice, 41(3), 236-243.
• Dolan, P.L. (2010, February 22). Data security breaches often triggered by
carelessness. American Medical News. Retrieved June 26, 2010 from
http://www.ama-assn.org/amednews/2010/02/22/bil20222.htm
• Greene, Adam H. HIPAA Compliance for Clinician Texting. Journal of
AHIMA 83, no.4 (April 2012): 34-36.
• Gross, B. (2009, August 18). Mobile liability. Annals of the American
Psychotherapy Association. Retrieved June 24, 2010 from
http://www.annalsofpsychotherapy.com/articles/news/30/15/Mobile-
Liabilit...
• HIPAA, Public Law 104-191, 45 CFR §§ 164.524, 164.526.

References
• HIPAA, 45 CFR § 164.501.
• Ponemon, L. (2009). Fourth annual US cost of data breach study:
Benchmark study of companies. Traverse City, MI: Ponemon Institute.
Retrieved June 26, 2010 from
http://www.ponemon.org/local/upload/fckjail/generalcontent/18/file/Cos
t%.
• Office for Civil Rights. Guidance on Risk Analysis.
• Office for Civil Rights. Are the following entities considered 'business
associates' under the HIPAA Privacy Rule: US Postal Service, United Parcel
Service, delivery truck line employees and/or their management. March
14, 2006.
www.hhs.gov/ocr/privacy/hipaa/faq/business_associates/245.html.

References
• Office for Civil Rights, US Department of Health and Human Services.
Guidance on Risk Analysis. July 14, 2010.
www.hhs.gov/ocr/privacy/hipaa/administrative/securityrule/rafinalguidan
cepdf.pdf.
• SMS. Wikipedia. http://en.wikipedia.org/wiki/SMS#Vulnerabilities.
• TigerText. "Physician and Hospital Texting Is on the Rise." Press release.
October 12, 2011. www.tigertext.com/physician-texting-on-rise.

Questions?
Marlene M. Maheu, Ph.D.
TeleMental Health Institute, Inc.
Phone: 619-255-2788
Email: mmaheu@telehealth.ORG

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