Ethical Practice and Risk Management for the Mental Health Professional in the Age of Telehealth

By Dr. Ed Smith, PhD. PsyD.

As new telehealth and telemedicine technologies begin to emerge in the behavioral health care space, mental health providers will want to stay aware and informed regarding the opportunities and the challenges presented by telehealth. Effective risk management essentially involves attending to the same two basic issues – the expectations associated with legal requirements and ethical practice.

It is the legal issue that is most affected by the new parameters associated with telehealth. As far as practicing ethically, however, the same core principles apply albeit the applications of these principles may have to be brought to bear when addressing additional questions that the medium presents. Constitutionally the 10th Amendment that both defines and restricts the states’ power to regulate, and, in the case of telehealth, comes down to the state’s power to regulate matters of public health and safety vs. restrictions to regulate interstate trade.

Going as far back as 2010 the Federal Government has weighed in on the issue of telehealth. In a published National Broadband Plan, the FCC stated, “If collaboration between the states is unable to reduce barriers to electronic practice across state lines within the next 18 months, then Congress should intervene…”

There is growing evidence that services provided remotely are as effective as in-person therapy with no difference in client/patient satisfaction. Thirty-seven states not only officially recognize telehealth as a legitimate mental health service but mandate remotely provided therapy as reimbursable. The legal requirements revolve, for the most part around licensing with the key questions being, “Where is the service occurring? Is it where the client/patient resides or where the clinician practices and if so what licensing requirements need to be met on the providers end?” This becomes more relevant with telehealth, of course, because through videoconferencing it can be much easier to meet with a client in a state you are not yet licensed in.

If we conclude that treatment occurs in the state that the client/patient resides then, unless you are licensed in that state, you would be, technically at least, practicing your profession without a license. But how common is it for a clinician to provide some sort of service over the phone to a client/patient living in another state, whether due to some temporary necessity such as your client/patient being out of town, be it a crisis or some other requested contact. In fact, 69% of practicing psychologist acknowledge having provided psychotherapy services by phone, and of this group, 75% report that this has involved services to individuals in states other than the state in which they were licensed.

Licensing boards are struggling to keep up with the unique circumstances and many challenges that such innovations present for which there is little, if any, precedent. Many of the legal questions have already been subject to case law and many more are likely to be involved in future guidelines and principles regarding both legal and ethical practice.

To cite just specific cases that exists so far is impossible to do within the brevity requirements of this posting. To summarize, however, the most relevant cases to date have generally implied that as long as the practitioner is not actively soliciting residents from other states, and if there exists a solid rationale for providing these services across state lines, there is no clear legal violation. In addition, it is unlikely in any but the most egregious cases, will state boards invest the required time and energy to convince a state’s district attorney to prosecute a case against a practitioner who does not reside in the state of jurisdiction in absentia.

Developments so far, however, include not only case law but such efforts as those of the APA and other professions along with efforts ASPPB, a national organization of state psychology licensing boards. These organizations have already begun initiatives to institute more uniformity across the states for the practice of telehealth. You may have already considered situations in which providing counseling or therapy services electronically could not only be advantageous from a marketing standpoint, but clearly offers clinically relevant advantages. Some examples include maintaining continuity in services to ongoing clients who, for one reason or the other, are geographically or physically unable to continue coming to sessions in person for a certain span of time, need aftercare from facilities located in other regions, or need family or couples therapy in situations where everyone meeting at the same time in your office is difficult or impossible.

Ethical considerations are substantially different, however, mainly in that any individual, regardless of state of residence can file a complaint with a licensing board. Licensing boards are much less likely to consider the legal issue of residence but will apply the same ethical considerations when determining the validity of the complaint and any disciplinary actions that board might choose to take. As might be expected, this can have a major bearing in the case of a civil complaint. In this case we can reasonably assume that the same essential considerations for ethical practice that appear in the ethical codes of the various mental health professional associations can still be applied.

The main principle of beneficence, which specifies that it is the best interest of the client/patient, not the practitioner’s interest, that has priority in all ethical decisions, many other guiding principles naturally emerge more clearly.

To summarize it appears that most standards likely to be additional relevant in the cases involving teletherapy are these:

1. Competency – your profession’s ethical code likely includes a principle that is the same or very similar to this point in the Ethical Standards of the American Psychological Association:

– Psychologists provide services only within the boundaries of their competence.
– Psychologists planning to provide services…involving techniques and technologies new to them undertake relevant education, training, supervised experience, consultation, or study.

(Ethical Principles of Psychology, Standard 2.01 – Boundaries of Competence)

If asked to justify your competence in telehealth, what could you cite as appropriate education and training?

2. Confidentiality and Record Keeping – both the storage and transport of any data relevant to your services to a client/patient falls under several guidelines and restrictions both ethically (professional standards) and legally. And most of these address electronically stored or transmitted data such as patient health information (PHI). One entity that pays particular concern to electronically stored or transmitted data is, of course HIPAA. These are all guidelines with which you should be especially familiar. For example, did you know that if you somehow lose, misplace, or erroneously transmit any portion of a client/patient’s record you are legally bound to report this to HIPAA, who then can conduct an investigation that can lead to a substantial monetary fine? And the fact that your electronic data could only be accessed via password (akin to “locked files”) is irrelevant. However, if your records are stored or transmitted in encrypted form, the entire process is waived. This, potential teletherapist, is an important thing to know, not only for this reason, but because encryption (at leaset 128-bit FTTPS) of electronic data is very likely to interpreted as one example of an adequate standard of care for protecting PHI.

In other words, the use of encryption is really not an option when it comes to protecting yourself ethically and legally. And not every online video-conferencing system is secure enough to meet these standards. Skype is a google example. Do your research before you start using any system. While Wecounsel’s software is specifically designed for sensitive record keeping and provides a system of encryption (256-bit) and security that exceeds these requirements, many of the more common videoconferencing applications do not meet HIPAA standards, usually because the company fails to maintain business associate agreements with the other entities it relies on for HIPAA compliancy. And the responsibility for knowing the difference lies with you, not your client/patient.

3. Informed consent – as just indicated, not only should you know these things but you are expected to share this information with your client/patient and obtain his/her consent beforehand. Has your client been cautioned about the need for security of his/her physical setting? Does he/she know the appropriate ways to contact you and any limitations of electronic communication in the case of a crisis or other important event? This and other points should be clearly communicated, consented to, and documented.

And finally, returning to the standard of beneficence, the welfare of the client/patient pretty much demands some common sense and clinical awareness when it comes to determining for whom and under what circumstances can the clinician demonstrate sound reasoning. For example, you are likely to be on much safer ground both legally and ethically if you choose clients/patients with whom you have already developed a sound therapeutic relationship and for whom there exist clear evidence that conducting therapy remotely offers a clear advantage. You should also be able to show that you have considered the dynamics of the case. For example, there is a clear difference between the clinical advisability of telehealth sessions with a mildly anxious but functional individual who will be temporarily unavailable for in-person sessions due to his/her job assignment vs. a highly volatile client/patient with a personality disorder and a history of impulsivity and poor judgment.

So, in conclusion, if you view telehealth simply as a great way to increase your client base and reduce overhead there is potentially far more risks involved. In other words if your motivation is, “Hey, this is a great way to make more money” you will be more vulnerable to those risks. The professional who chooses carefully by weighing the client, the need, and the goals of therapy and who makes a point to be educated and informed about the technologies in telehealth and about the technicalities of legal and ethical practice where the client/patient resides is in a much more secure position.

As is often said in any good ethical training program, it isn’t the decision you make, it is the knowledge and reasoning you use to come to that decision that goes into the determination of whether a decision is or is not ethical (and, of course, the equally important commandment, “Thou shalt document, document, document!)