Treading Through Teletherapy Treatment Topics

Avoiding Malpractice: Tips for Social Workers to Manage Risk

Treading Through Tele-therapy Treatment Topics

At NASW Chapter events and webinars, questions often arise from practitioners regarding teletherapy. This topic is becoming increasingly popular and frequently discussed. Patients like the flexibility and the opportunity to dialogue in therapy from the comfort of their own home, or other location, and the convenience, perhaps even while traveling. Privacy, comfort, and flexibility are key elements that patients voice.

Social Work practitioners say that they appreciate teletherapy to better accommodate their patients while expanding their practice into other venues and geographic locations and to enhance their practice productivity. When the social worker begins a new patient relationship, an agreement must be reached as to when and how the regularly scheduled in-office sessions are set.

There is a difference between actual therapy and the administrative processes of setting appointments. You must verify what the difference is in your state. Many social workers communicate with their patients in between scheduled sessions, such as by telephone, email, and texts. First make sure that you are in compliance with existing laws, regulations, and ethical practice.

What is teletherapy?

Tele-therapy is communication of any type that occurs between the practitioner and the patient through a third party method whereby therapy treatment is delivered without being present in person, or face-to-face. These third-party methods or platforms may include telephone, email, texts, skype, facetime, and other platforms.

Teletherapy may cross state borders as interstate therapy activity, or remain as an intrastate therapy activity within the legal state venue. These two dimensions are critical from a legal perspective, and in some states, they are explicitly set forth by each state’s respective statutes. Moreover, teletherapy legal constraints and state statutes vary depending on the actual occupation, such as Life Coach, Wellness Counselor, or Rolfer for example. These occupations are not held to the same high standards and legal licensing requirements compared to the highly educated, training requirements, and licensing requirements of social workers who are more highly regulated.

Teletherapy risk management is, therefore, a critical element to resolve characteristically because it carries more inherent risk. Before the practitioner embarks on any sort of teletherapy treatment, both intrastate and/or interstate thorough groundwork is required. In other words, regarding the Social Worker occupation specifically, or any other Allied Health occupation for that matter, what teletherapy methods are legal in your state, and what are your limits regarding interstate treatment? Check with your attorney.

Here is an example of the most rigid and overreaching state impact regarding the California licensing board. The California licensing board issued a travel warning to all California residents that applies to those who are patients, that their California state-licensed mental health practitioners, including social workers, are not be permitted to provide telephone counseling or other mental health services over the telephone (or electronically), when the traveling patient calls from outside of California unless, the practitioner first checks with the state that the particular patient is located in to determine if the law in that state allows the California licensee (social worker), to provide professional services. This travel warning arises from a board regulation related to the delivery of health care services through telehealth.

So the burden is shifted to the practitioner to verify that all states that the patient travels to have been vetted so as to allow the practitioner to work with that California resident patient who happens to call the practitioner while traveling out of California.

This warning applies to mental health occupational services in California, issued by the licensing board for marriage and family therapists, professional clinical counselors, educational psychologists, and clinical social workers, inasmuch as these occupations are the most regulated and have the highest inherent practice standards. The lesson here is that practitioners in other states must have their respective attorney evaluate any similar policy decisions in their respective state.

Pointers to Pursue:

  • Maintain your professional liability insurance and verify the coverage with respect to venue. Typically the policies only cover where you are licensed. Most will cover therapy intra-state regardless of therapy modality.
  • Check with your state licensing board rules regarding teletherapy services. Several states, such as California, Florida, Massachusetts, North Carolina, Texas, Virginia, and Wisconsin, have rules in place regarding teletherapy. California is the most strict. If you practice across state lines, call the state licensing board in which your patient resides in addition to the state that you practice in, for additional risk management protection. Treatment is considered to take place where your client lives, not in the state in which you practice. There may likely be rules pertaining to inbound and outbound teletherapy as well.
  • Apply ethical standards equally across in-person therapy and teletherapy. Such standards include, but are not limited to informed consent, competence to practice, confidentiality, patient termination, and payment arrangements.
  • Establish availability rules, definitions, and procedures of, and for emergencies, with disclosures that are given to patients at the start of treatment.

Pointers To Prevent:

  • Do not add teletherapy to your services until you know and comply with your state licensing rules and have processes established, as vetted by your attorney, and rules regarding traveling patients who may contact you.
  • Do not use a non-HIPAA compliant platform. HIPAA compliance has been mirroring technological change. Ensuring that your platform is HIPAA compliant is critical so as to reduce your risk and to maintain patient privacy.
  • Do not discount the value of privacy venues. It is best to control the therapy venue in a private office or conference room, rather than meeting in a public venue such as a snack bar or coffee shop. Using public venues risk confidentiality breaches.
  • Do not ignore secure information storage and protection tools. Use computer applications and platforms that are protected.

By its very nature, teletherapy will expose the patient and practitioner to increased risk caused by information breach. Regardless of treatment modality, the health and privacy rule are baked into HIPAA legislation: (Health Insurance Portability and Accountability Act of 1996).

This covers the disclosure of an individuals’ health information in addition to standards for individuals’ privacy rights. The privacy rule makes sure that the patient’s health records are protected. It also allows for the release of information in order to properly care for the patient while ensuring that the records are not breached.

Any category of health information is covered under the rule, including health insurance claims and benefits eligibility, treatment, patient name, address, and personal data, and all therapy notes and documentation. The privacy rule protects all health information, regardless of storage mode, paper, digital, and oral form.

Know the HIPAA requirements and how they interact with your state licensing board rules and state laws.

Not all professional liability insurance policies cover patient records breaches, so read your policy carefully. The NASW RRG professional liability policy is the most comprehensive in the industry. The NASW RRG also offers a low-cost cyber liability policy that protects the practitioner against third-party information breach for which HIPAA holds the practitioner accountable.

Published December 2018

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