Getting Paid: Telehealth & Keeping Your License: Things to Remember from the BBS

Today, during the COVID-19 public health emergency, the majority of licensed and registered mental health professionals in California have shifted to providing psychotherapy services using telehealth. Most are new to telemedicine and what’s required by the California Board of Behavioral Sciences (BBS). Questions abound . . .

What telehealth platforms can I use during the COVID-19 public health emergency? What communication technologies are still prohibited? What communication products or technologies can I use if I want a HIPAA compliant telehealth platform for my practice? What things am I required to do with each client when I begin telehealth services? What am I required to do with clients at the beginning of each telehealth session?

The answers to these questions and more are in the three following BBS telehealth documents presented here in full for easy use and reference—with links to the original documents.
Read them. Comply with them. Keep your license, and yourself, free from unprofessional conduct and disciplinary action.

1. BBS: Standards of Practice for Telehealth California Business and Professions Code
All persons engaging in the practice of marriage and family therapy, educational psychology, clinical social work, or professional clinical counseling via telehealth, as defined in Section 2290.5 of the Code, with a client who is physically located in this State must have a valid and current license or registration issued by the Board.

All psychotherapy services offered by board licensees and registrants via telehealth fall within the jurisdiction of the board just as traditional face-to-face services do. Therefore, all psychotherapy services offered via telehealth are subject to the board's statutes and regulations.
Upon initiation of telehealth services, a licensee or registrant shall do the following:

1. Obtain informed consent from the client consistent with Section 2290.5 of the Code.
2. Inform the client of the potential risks and limitations of receiving treatment via telehealth.
3. Provide the client with his or her license or registration number and the type of license or registration.
4. Document reasonable efforts made to ascertain the contact information of relevant resources, including emergency services, in the patient's geographic area.

Each time a licensee or registrant provides services via telehealth, he or she shall do the following:

1. Verbally obtain from the client and document the client's full name and address of present location, at the beginning of each telehealth session.
2. Assess whether the client is appropriate for telehealth, including, but not limited to, consideration of the client's psychosocial situation.
3. Utilize industry best practices for telehealth to ensure both client confidentiality and the security of the communication medium.

A licensee or registrant of this state may provide telehealth services to clients located in another jurisdiction only if the California licensee or registrant meets the requirements to lawfully provide services in that jurisdiction, and delivery of services via telehealth is allowed by that jurisdiction.
Failure to comply with these provisions shall be considered unprofessional conduct.

2. BBS statement on HHS Telehealth Announcement of Enforcement Discretion
U.S. Department of Health and Human Services (HHS) Announcement
of Enforcement Discretion for Telehealth Remote Communications
The Office for Civil Rights at the U.S. Department of Health and Human Services (HHS) has announced that it will exercise its enforcement discretion and will waive potential penalties for HIPAA violations against health care providers that serve patients through everyday communication technologies during the COVID-19 public health emergency.
During this time, covered health care providers subject to HIPAA may provide telehealth services, in good faith, through remote communications technologies that may not fully comply with HIPAA requirements. This applies to telehealth provided for any reason, whether related to health conditions related to COVID-19 or not.

What Telehealth Platforms Can I Use?
HHS states that covered health care providers can use any non-public facing remote communication product that is available to communicate with patients. This includes popular applications that allow for video chats, such as the following:

• Apple FaceTime
• Facebook Messenger video chat
• Google Hangouts video
• Skype

Providers are encouraged to notify patients that these third-party applications potentially introduce privacy risks. Providers should enable all available encryption and privacy modes when using these applications.

What Platforms Are Still Prohibited?
HHS still prohibits using communication products that are public-facing. Therefore, do not use these types of platforms. Examples of public-facing communication products include, but are not limited to, the following:

• Facebook Live
• Twitch
• TikTok

I Still Want to Use a HIPAA Compliant Telehealth Platform For My Practice. What Are Some Examples Of These?
HHS provides some examples of products that are HIPAA compliant and will enter into HIPAA business associate agreements (BAAs) in connection with the provision of their video communication products. (They stress that they have not reviewed the BAAs for the below entities, and that this is not an endorsement, certification, or recommendation):

• Skype for Business (Now called Microsoft Teams)
• Updox
• VSee
• Zoom for Healthcare
• Doxy.me
• Google G Suite Hangouts Meet

HHS Notes That HIPAA Applies Only to Covered Entitles and Business Associates. How do I Know If It Applies To Me?
HHS provides the following bulletin HIPAA Privacy and Novel Coronavirus. This topic, HIPAA Applies Only to Covered Entities and Business Associates, is covered toward the end of Page 5.
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Where Can I Find More Information?
You can use the following links for more information from HHS:

• OCR Announces Notification of Enforcement Discretion for Telehealth Remote Communications During the COVID-19 Nationwide Public Health Emergency
• Notification of Enforcement Discretion for Telehealth Remote Communications During the COVID-19 Nationwide Public Health Emergency
• Office for Civil Rights, U.S. Department of Health and Human Services BULLETIN: HIPAA Privacy and Novel Coronavirus

3. Telehealth: BBS General Information & Requirements for Licensees & Registrants 
About Telehealth

• Under law, “telehealth” is the mode of delivering health care via information and communication technologies, including, but not limited to, telephone and/or internet
• Licensees may deliver health care, under their scope of practice, via telehealth, under certain conditions
• Licensees are responsible for understanding all applicable laws, to deliver health care via telehealth
• Failure to comply with any provisions regarding telehealth may be subject to disciplinary action by the Board

Comprehensive Requirements and Applicable Laws
Detailed explanations regarding telehealth requirements, for licensees and registrants, are contained in the following statutes and regulations:

• California Code of Regulation Title 16 §1815.5: Standards of Practice for Telehealth
• Business and Professions Code §2290.5 

Clients in California
This section applies to clients who are physically located in California.

• Individuals providing psychotherapy or counseling, either in person, via telephone, or via internet, must be licensed in California.

Clients Outside of California
This section applies to clients who are physically located out-of-state.

• California licensees or registrants who wish to engage in telehealth with a client located in another jurisdiction need to check with that jurisdiction to determine its laws related to telehealth, and if licensure in that jurisdiction is required. Several states currently consider a client located in their state to be under their jurisdiction. Therefore, a practitioner needs to comply with that jurisdiction’s laws in order to avoid any potential violations of those laws.

Inform and Consent
Prior to the delivery of health care via telehealth, the provider initiating the use of telehealth shall:

• Inform the patient about the use of telehealth; AND
• Obtain, and document, verbal or written consent from the patient for this use

Confidentiality

• All laws regarding the confidentiality of health care information and a patient's right to their medical information shall apply to telehealth interactions.

Additional Info
Additional information regarding telehealth is contained in the following statutes and regulations:

• California Code of Regulation Title 16 §1815.5: Standards of Practice for Telehealth 
• Business and Professions Code §2290.5