Text Messaging: 12 Risk Management Considerations to Keep You Out of Hot Water

Text Messaging: 12
Risk Management
Considerations to
Keep You Out of
Hot Water
MARLENE MAHEU,
PHD
EXECUTIVE DIRECTOR
TELEBEHAVIORAL
HEALTH INSTITUTE
(TBHI)
LAURA GROSHONG,
LICSW, DIRECTOR,
POLICY & PRACTICE,
CLINICAL SOCIAL
WORK ASSOCIATION
(CSWA)
CONTACT@
TELEHEALTH.ORG
619-255-2788
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licensed healthcare professionals,
attorneys and other consultants.
 TBHI GOAL: Our goal is educational
only. No warranty, guarantee, or
representation is made as to the
accuracy or sufficiency of the
information contained in our training
for your specific circumstance.

Disclaimer
 YOUR PART: You are encouraged to
seek practice-specific advice from
your own legal, regulatory, ethical
and liability authorities before
offering any telehealth services or
programs to
consumers/clients/patients. Obtain
all such opinions in writing, and have
your informed, trusted, local, legal
counsel review those written
responses for their full significance.

Learning
Objectives
 List at least four relevant ethical
codes that relate to text therapy
 List the 3 primary types of text
messaging services
 Intelligently discuss the scientific
evidence base related to text
messaging therapy
 Identify at least three types of
errors that diminish client/patient
satisfaction with text messaging
 List texting security suggestions
and possible platforms to consider
for secure texting

Learning
Objectives
 Identify the relevance of HIPAA &
HITECH in relation to using smart
devices for text messaging
 Discuss professional boundaries in
text messaging with
clients/patients
 Outline at least five pivotal legal
issues of relevance when
accepting employment from an
online employer to deliver text
messaging therapy as a licensed
professional

Ethical Issues
Related to Text-
Messaging

Do No Harm

All
Existing
Legal
and
Ethical
Rules
Apply to the
Use of Any
Technology

AAMFT Code of
Ethics
2015

American
Counseling
Association Code
of Ethics, 2013
Section”H”

American
Psychological
Association, 2013

NAADAC Association for
Addictions
Professionals, 2016
Principle VI: E-Therapy,
E-Supervision, and
Social Media

Social Work
Technology Standards
2017

1) Informed
Consent
Represents a discussion /
“meeting of the minds”
Information is
influenced by many
factors, including
 Client/Patient’s
capacity for
absorbing
information
 Time limits
 Clinician’s
schedule
 Document only serves
as important evidence

2) Inter-
jurisdictional
Practice
In most states, we must
be licensed where our
clients/patients are at the
time of our contact, even if
that contact is
asynchronous
Patient-centered care.
We are transporting
ourselves to them, which
means that you must be
licensed where they are
located

Inter-jurisdictional
Practice
 Safest Practice:
Provide services only
where licensed
 Require client/patient
to attest to his or her
location at every
contact in an initial
protocol

3)Assessment
1) How do you
assess/address:
a. Client/patient’s
level of
sophistication
b. Their education
about the
technology
c. Their preferences
d. Lack of verbal and
visual cues
e. Privacy and
confidentiality

1) How is competence
established?
1) Education
2) Supervision
3) Experience
4) Training
2) Can you demonstrate
“competence” related to text-
messaging?
4) Boundaries of
Competence

Social Work
Technology
Standards,
Standard 2.06
Competence

American Psychological Association’s
Ethical Principles of Psychologists and Code of
Conduct “Boundaries of Competence”
American Psychological Association’s
Ethical Principles of Psychologists and Code of Conduct
“Boundaries of Competence”

https://telehealth.org/blog/telebehavioral-health-competencies/

CTiBS Interprofessional Framework
for Telebehavioral Health
Competencies
7 Domains
5 Subdomains
51 Telebehavioral
Objectives
149 Telebehavioral
Practices Across 3
Competency Levels
(Novice, Proficient &
Authority)

5) Evidence Base
1) How do you define EB?
a) Published research
b) Filtered through your clinical
lens
c) Applied to specific
client/patient being treated
2) Which evidence-base (EB)
are you referencing in your
documentation?

Types of Text Messaging
 Three types of texting with clients/patients:
 Reminder Services - shown effective in supporting a wide
variety of clinical behavioral and mental health
populations with a variety of disorders.
1 - way
2 -way
 Open, interactive – not well researched, highest
variability in responses (and highest liability)

http://www.ncbi.nlm.nih
.gov/pmc/articles/PMC
3936297/

http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3936297/

http://www.jmir.
org/2014/10/e2
22

http://www.jmir.org/2014/10/e222

Text Messaging Study Results
Summary
 Results of many studies show
positive outcomes for using text
messaging to deliver reminder
messages in patients across
diagnostic groups
 Research for interactive
clinical exchanges is more
sparse

6) Clinician Errors When Text
Messaging
 Lack of informed consent
 Emoticons
 Abbreviations
 Scare tactics
 Typos
 Lack of telehealth training
in general

7) Boundary
Issues

Boundary Issues?
 How can you prevent seeming overly
personal?
 How can you prevent errors:
 Sending hearts or other images
that you use frequently with
family/friends?
 Texting the wrong person?
 Control impulsivity to remember the
need for a therapeutic “frame”?

8) Clinical
Frame
 Texting typically
involves working
asynchronously for 5-
10 minute segments
of time
 Adhere to your
training and scope of
practice, or obtain
sufficient training to
develop new
competencies in new
areas

9) Text-Messaging Employers
Some text-messaging employers
make “bold” claims about the services
that you will deliver.
Many text-messaging employers
define the services that you will offer
when they pitch those services to their
consumer public

Text-Messaging Employers
Read and understand the claims offered
by any employer’s advertising. Can you
defend your work if questioned?
Ask your association’s ethical or legal
office to review all employer advertising
claims.

Some text-messaging employers offer
“training” but it isn’t evidence-based.
 Rather, it is based on in-person crisis
management principles that have not yet
been proven effective to texting, leaving
you and your client/patient at risk.
Ask for the names of their training
models, and review them for adequacy. (Be
leery of diversions.)

Some text-messaging employers offer
psychological tests but leave their use up
to your “clinical judgement.”
 Have you been trained in the use of
such tests in texting, without ever seeing
the client/patient?
Ask for their research related to the
efficacy of using such tests without verbal
exchanges. Review their research and ask
your former supervisors about.

 Some text-messaging employers
offer “training” but it isn’t evidence-
based. It consists of in-house tutorials.
 It is often based on in-person crisis
management principles that have not
yet been proven effective in texting.
 Ask for their training models, and
research them yourself.

Some text-messaging employers claim to
“allow” you to conduct informed consent. Put
all responsibility on you if you haven’t done
so.
 How do you conduct an informed consent if
clients/patients have not been recruited to
expect a verbal discussion?
Ask for the company’s “guidance” and see
what you get in writing. Ask for legal/ethical
review from your professional
association/licensing board.

Where is your client/patient’s information going?

HIPAA Covered Entity
“Covered entities” include professionals
who use text messaging services.
Vendors do not need to be HIPAA
compliant.
As a covered entity using a text
messaging vendor, you need to find one
who offers technology that is HIPAA
compatible.

HIPAA Risk Analysis
 You must conduct a “HIPAA risk
analysis” on a regular basis

HIPAA BAA
 You must use an entity that
offers a Business Associate
Agreement (BAA)

Why Not Just Erase Text
Messages?
 Some mobile devices store
information in places that make
it impossible to erace all traces
of client/patient contact:
 on the SIM card or
 on the device itself

Your HIPAA Policies
 Develop your policies and have
them reviewed by an informed,
local attorney
 Educate your staff regarding your
policies / document training
 Get the training that you need to
stay current with HIPAA’s
requirements (audit trails, breach
notification, etc.)

11) Name
possible
platforms to
consider for
secure texting

TBHI Buyer’s Guide:
https://telehealth.org/telehealth-buyers-guide-home/

Secure Messaging Scorecard
For a review of several messaging systems,
see this page:
www.eff.org/secure-messaging-scorecard

Examples to Discuss

Examples to Discuss
 Your client/patient sends you a text
stating, "I can't take it anymore."
 How do you know what this means?
 How do you respond?

Example to Discuss
 You are outside your office when your office
manager calls you regarding a problem with your
next scheduled appointment. You ask that the
client’s phone number be sent to you in a text
message, knowing that if in a text message, you
won't need to write the number down first, then
dial.
 Are you using HIPAA-compliant text
messaging? What are HIPAA text-messaging
solutions?

Example to Discuss
Your online employer insists that you follow
their protocol, despite the fact that it requires
you to violate your ethical code by conducting
a suicide assessment using non-evidence-
based techniques for text-messaging.
 What do you do?

Example to Discuss
 In a session, you and your patient develop a few
self-statements that she can use when
overwhelmed.
 She texts you several days later and asks you to
please text her self-statements because she forgot
them.
 What are the ethics of using text in this situation?
How do you prevent her other phone users from
seeing these statements? How do you document
this event?

Example to Discuss
 Your online employer has created
a platform that doesn't allow you to
perform your legally required
informed consent, mandated
reporting or record keeping. Co-
workers see "no problem."
 What do you do?


Example to Discuss
 Your supervisee texted you a question
about their new client. You are unaware
that your supervisee was over state
lines at the time. You didn't ask
anything about their location and texted
them back. You later learn that they
were out of your jurisdiction. Why is this
a clinical, legal and ethical problem?

Publications
 Luxton, D. D., McCann, R. A., Bush,
N. E., Mishkind, M. C., & Reger, G.
M. (2011). mHealth for mental
health: Integrating smartphone
technology in behavioral
healthcare. Professional
Psychology: Research and
Practice, 42(6), 505.

Publications
 Broom, M. A., Ladley, A. S.,
Rhyne, E. A., & Halloran, D. R.
(2015). Feasibility and
perception of using text
messages as an adjunct
therapy for low-income,
minority mothers with
postpartum depression. JMIR
mental health, 2(1), e4.

Publications
 Luxton, D. D., Nelson, E. L., &
Maheu, M. M. (2016). A
practitioner's guide to
telemental health: How to
conduct legal, ethical, and
evidence-based telepractice.
American Psychological
Association.

Publications
 Maheu, M. M., Drude, K. P.,
Hertlein, K. M., Lipschutz, R.,
Wall, K., & Hilty, D. M. (2017).
An interprofessional framework
for telebehavioral health
competencies. Journal of
Technology in Behavioral
Science, 2(3-4), 190-210.

Existing TeleMental &
Ethical Statements
 American Association of Marriage
and Family Therapists (2015). Code
of Ethics.
 American Counseling Association.
(2014). ACA Code of Ethics
 American Mental Health Counselors
Association. (2000). Code of Ethics
of the American Mental Health
Counselors Association, Principle
14, Internet On-Line Counseling

Ethical Statements
 American Telemedicine Association. (2013).
Practice Guidelines for Videoconferencing-
Based Telemental Health
 American Psychiatric Association. (2018). Best
Practices in Videoconferencing-Based
Telemental Health
 Joint Task Force for the Development of
Telepsychology Guidelines for Psychologists.
(2013). Guidelines for the Practice of
Telepsychology.

Ethical Statements
 NAADAC, the Association for
Addiction Professionals (2016).
NAADAC/NCC AP Code of Ethics.
 National Association of Social
Workers. (2018). Code of Ethics
 National Association of Social
Workers. (2017). Technology
Standards.

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Marlene M. Maheu, PhD
Executive Director
Institute
Teleheath.org/naadac
contact@telehealth.org
619-255-2788
Q&A

Text Messaging: 12 Risk Management Considerations to Keep You Out of Hot Water

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