2. Regulatory Issues in Telepractice
American Association of State Counseling Boards
January 13, 2017

3. How it all began… Request to the Licensing Standards Committee, 2013
MFT from CA moving to TX, requesting permission to continue his CA practice from TX
Decision: Meet CA Rules/Regs and TX rule
Realization: We were behind the trend.

4. Best Hopes Collaboration with other states – realized through AMFTRB
Collaboration with other mental health professions – realized through process of Sunset Review and here at AASCB

5. TSBEMFT (q)
A licensee who engages in interactive therapy via the telephone or internet must provide the client with his/he license number and information on how to contact the board by telephone, electronic communication, or mail, and must adhere to all other provisions of this chapter.

6. Questions & Curiosity November 2014
What are our collaboration goals?
Will we seek to coordinate with other mental health boards in Texas (much like rules regarding Parent Coordinator/Parent Facilitator)?
Will we seek to coordinate in the form of a compact with other states at the national level (AMFTRB), much like the medical boards and nursing boards have done?
-Per 11/15/14 discussion, we will seek collaboration with other mental health boards in the State of Texas. TSBEMFT Rule Committee Chair will reach out to TSBEPC Rules Committee Chair to begin the conversation. TSBEMFT will invite other boards to participate in the discussion. Ultimately, TSBEMFT would like to lead the way at AMFTRB, where the conversation on a national level has already begun, with the goal of establishing a compact among states regarding commonly accepted practices and procedures.
-Texas Telemed: Legislative Action in Texas:
-No implications were cited in the 11/15/14 discussion.

7. Questions & Curiosity November 2014
How does Texas Statute address issues related to Telepractice (Telemedicine)?
 How does the Patient Protection and Affordable Care Act relate to telepractice and mental health, and are there implications for our rules?

8. Questions & Curiosity November 2014
Does the proposed language reflect the jurisdiction of TSBEMFT?
What language is necessary to protect the public?
Should separate language be written under the Supervision section of the rules for “Technology-Assisted Supervision”?
How do we define “Telepractice” or “Technology-assisted services”?

9. Questions & Curiosity November 2014
When does the therapeutic relationship begin via Telepractice Technology?
Should licensees be required to obtain appropriate training or certification in Telepractice prior to using telepractice technologies?
Where does the “therapy” take place?

10. Questions & Curiosity November 2014
Is the MFT responsible to assess if the telepractice is an appropriate treatment modality for the client?
What is included in appropriate Informed Consent when using telepractice technologies?
Other disclosures that need to be made when delivering telepractice?

11. Questions & Curiosity November 2014
Are special measures necessary to verify the identity of the client and gain appropriate consent for treatment?
Is continuity of care necessary in the practice of MFT?
Special considerations in appropriate Record keeping in telepractice?
Special considerations regarding Privacy and Security?

12. Questions & Curiosity November 2014
Can a board approved supervisor offer supervision to a supervisee in another jurisdiction through the use of technology-assisted services?
Should language be included in this section to address the use of social media?

13. Challenges in Rule Making
Where does therapy take place?
Enforceable language
Jurisdictional issues
Wider view of “Public Protection”
Specifying, “Texas Resident,” “Citizen,” “Person(s) in Texas
Face to face initial session
Repeating language that’s covered elsewhere
Rules vs. Guidelines
Definition of telepractice
Minimum standards vs. Best practice

14. AMFTRB Teletherapy Committee formed 9/2015
Task: National Guidelines for Teletherapy
Considered these questions:
Start from scratch? Write original guidelines?
Adopt something that’s already been written?
Compile our own based on ethical considerations and other professional standards?

15. AMFTRB Key Assumptions
Public protection is the overriding principle
Special consideration of systemic challenges given to each guideline
All existing minimum standards for face-to-face interaction are assumed for teletherapy
Teletherapy standards should not be unnecessarily more restrictive than the respective face-to-face standards

16. AMFTRB Key Assumptions
Each guidelines is a recommendation for minimum standard for safe practice not a best practice recommendation
The regulation of teletherapy is intertwined with the challenges of portability of licensure across state lines
Each guideline written with the consideration of national teletherapy credential

17. In the meantime…
“The Future is Here: Ethical Principles of Telemental Health” (in-press, Journal of Psychology and Christianity, June 2017)
Discussion on ethical standards of ACA, AAMFT, APA, NASW

18. Common Issues in Professional Codes of Ethics
Practitioners are held to the same standards, whether they practice online or in person
Legal requirements, ethical standards, technology, intra-interstate policies, and the professional context must be considered
Clients must be notified of potential risks/benefits
Technology must be appropriate for the client

19. Common Ethical Issues
Therapist must be adequately trained in teletherapy
Confidentiality and security considerations are the burden of the counselor
Practice only within allowed jurisdiction
Special considerations in Informed Consent are addressed
Back up plan if technology fails

20. Common Ethical Issues
Miscommunication due to lack of non-verbal cues is considered
Licensing information and information about how to file a complaint must be included
Consider the risks and benefits of social media and keep professional and personal accounts separate
Client’s right to privacy online

21. Common Ethical Issues Special consideration in cultural competency
Verification of client identity is necessary
Establish crisis intervention plans and identify resources and referrals in the client’s location
Regular assessment of the benefit of teletherapy for the client
Data security, storage, encryption, HIPAA
Implications of using tests that were developed for face-to-face administration

22. Common Ethical Issues
No contradictions across ethical codes, guidelines and standards of mental health professions
As of 2014, no states expressly prohibited the practice of telemental health
Growing trend for state licensing boards to accept telemental health as a modality of practice; however states vary greatly in their specific guidelines.

23. Why Regulate?
Clinicians may be better equipped to provide standardized, ethical treatment via telemental health in states where clear rules and regulations exist.
As telemental health often crosses jurisdictional borders, it is beneficial for states to work together through national licensing board associations to develop clear and consistent guidelines.

24. 4 Ways Telehealth Can Improve Behavioral Health Treatment and Increase Access to Care:
· Quicker and easier access to a wider array of healthcare services and mental health specialists · Improved and expanded televideo mental health trainings for providers in rural areas · More equitable geographic distribution of healthcare workforce and specialist skills · Cost savings for patients, private health insurers, and public health programs such as Medicaid through increased efficiencies, fewer redundancies, and earlier interventions during (or before) mental health crises. (Hogg Foundation)

25. American Telemedicine Association’s Report Card on State Policies

26. 50 State Telemental Health Survey
What is the regulatory body?
Restrictions on Scope of Practice using Telehealth
Licensing requirements specific to Telehealth
Criteria for counselor/client relationship
Prescribing authority
Acceptable modalities that meet the standard of care

27. Trends Across Borders
As of 2014, no state licensing board expressly prohibited the tele-practice
The majority of states boards (67%) reference telemental health in some form
32% of state boards in mental health professions provided no direction (2014)
48 states have some sort of Medicaid coverage and reimbursement for telemental health
Significant need for improvement in private insurance coverage

28. Trends Across Borders
September 2016: CA Licensing Board (BBS) issued a warning regarding therapy with patients who travel out of state. BBS requires that if a therapist (MFT, LCSW, LPC, LEP, etc.), treats in the state s/he is licensed in, and the client goes on vacation or business trip to another state, the therapist has an obligation to check with the state where the client is temporarily in to see if conducting phone or video-conferencing therapy is allowed.
This notice is essentially a travel warning to all current patients and to all California consumers seeking or receiving counseling or psychotherapy from any of these practitioners, suggesting to patients who are already in treatment with their California-licensed practitioners that they may not be able to get continuing and necessary treatment from their therapists via telephone if they temporarily cross the borders of California.
Lesley, R., J.D., LICENSING BOARD ISSUES WARNING TO PATIENTS WHO TRAVEL OUT OF STATE! Re: Telephone Counseling/Psychotherapy in Avoiding Liability Bulletin, September 2016.
September 2016: CA Licensing Board (BBS) issued a warning regarding therapy with patients who travel out of state
CA Licensing Board (BBS) issued a warning regarding therapy with patients who travel out of state. By Richard Lesley, in Avoiding Liability Bulletin, September In the warning BBS requires that if a therapist (MFT, LCSW, LPC, LEP, etc.), treats in the state s/he is licensed in, and the client goes on vacation or business trip to another state, the therapist has an obligation to check with the state where the client is temporarily in to see if conducting phone or video-conferencing therapy is allowed.
This notice is essentially a travel warning to all current patients and to all California consumers seeking or receiving counseling or psychotherapy from any of these practitioners. The Board notifies California consumers that if they are traveling to another state and wish to engage in psychotherapy or counseling via the telephone (or the internet) with their California-licensed therapist while they are away, their therapist needs to check with the state that the patient is temporarily located in to see if this is permitted. The State of California, through one of its many regulatory boards, is thus suggesting to patients who are already in treatment with their California-licensed practitioners that they may not be able to get continuing and necessary treatment from their therapists via telephone if they temporarily cross the borders of California!Richard Lesley, JD, Sep. 2016

29. Issues Across International Borders
Subject to all of the laws in both jurisdictions
Board rules in state in which you are licensed
State laws in the state where you are licensed AND in the state you are located in (if different)
Relevant licensing boards/professional organizations in the state/nation where the client is located
Laws in the state/nation where the client is located
(PersonCenteredTech.com)

30. What if there is no license in that country?
Working without regulation has risks:
Suicide?
Safety planning? Alerting authorities? Family sues?
Coordinating Care?

31. International Practice
Does HIPAA apply? YES
Assumptions:
Colleagues speak the same language, literally and figuratively
Systems work a certain way
Need for professional network in that area
Determine if professional liability insurance covers international practice

32. Trends in Other Professions
Federation of State Medical Boards (FSMB)
Since 1995, 18 states have passed the model act to regulate the practice of telemedicine across state lines.
Provides regulatory guidance, education for licensees, and standards of care for telemedicine
Similar licensing standards for all participating states

33. FSMB Jurisdictional Statement
A physician must be licensed by, or under the jurisdiction of, the medical board of the state where the patient is located. The practice of medicine occurs where the patient is located at the time telemedicine technologies are used. Physicians who treat or prescribe through online services sites are practicing medicine and must possess appropriate licensure in all jurisdictions where patients receive care.

34. Trends in Other Professions
Nurse Licensure Compact
25 states participating (10/2016)
Multi-state license
Member states allow nurse that possesses a current license in one state to practice in any of the other member states without obtaining additional licensure

35. Trends in Other Professions
Psychology Interjurisdictional Compact (PSYPACT)
Approved by ASPPB Board of Directors in 2015
Need 7 States before it becomes operational
Arizona first state to pass legislation

36. PSYPACT ePassport
Promotes standardization in interjurisdictional telepsychology practice
Facilitates the process of telepsychology across jurisdictions
Licensing: Fully licensed with no disciplinary actions
Educational Requirements
National Exam

37. PSYPACT Interjurisdictional Practice Certificate
Standardization for short term practice
Facilitates interjurisdictional mobility without obtaining a license
Allows up to 30 days of practice in a participating jurisdiction without licensure
Fully licensed without disciplinary action
Standard Educational Requirements

39. Big Questions
How can we promote access to care while ensuring public protection?
Does the board’s current or proposed language accurately reflect jurisdiction, offer guidance to licensees and protect the public?

40. Ideas Portability Policies/Compacts
Agreements between states regarding jurisdictional issues and prosecuting offenders
Agreements on licensing standards to streamline licensure (FSMB)
Multistate licensure
Rules to allow Temporary/Provisional Licensure on a fast track
Rules allowing for certain number of days to practice in a state without licensure in that state

41. Special Topics Social Media Policies Texting
Verification of client identity
Special Issues in Informed Consent
Avatar Therapy
Other?

42. Take It Home
Step 1: Consider what’s already in rule in your state and if those rules adequately cover the issues.
If YES – congratulate your fellow board members! And consider how your state can increase access to care by working with other mental health professions/boards and by working with other state boards.
If NO…

43. Step 2 Consider questions/assumptions from TSBEMFT and AMFTRB
Utilize this presentation
Assign committee to work on language
Put language together for Legislators, if the process requires legislative action in your state

44. Next Steps for AASCB?

45. Steps in a good direction…
AASCB Focus on Portability - Five Year Plan
NBCC Distance Credentialed Counselor

46. A Few Helpful Resources
AMFTRB Guidelines –
American Telemedicine Association Practice Guidelines for video-based online mental health services.
American Counseling Association
American Distance Counseling Association
Federation of State Medical Boards
Telemental Health Institute
Texas State Board of Examiners of MFTs
ASPPB PSYPACT

47. Contact Information
Jennifer Smothermon, MA
LMFT-S, LPC-S, RPT-S
(office)