Ethical, Legal, and Effective Practice of Telehealth...Telehealth practice Ethics cannot be...

Ethical, Legal, and Effective Practice of Telehealth

Hank Cecil, ACSW, LCSW

© Copyright 2020 – Starship Care, LLC - Hank Cecil, LCSW 1

2

Hank Cecil is the owner of Starship Care, LLC. He has worked as

a Quality Practice Advisor for Wellcare Health plans, a Managed

Care Organization. He is retired from Four Rivers Behavioral

Health in Paducah, KY where he served as a therapist for children

and adults and other roles including Quality Director and HIPAA

Compliance Officer. FRBH initiated telehealth in 2006.

Mr. Cecil is a graduate of the University of Kentucky College of

Social Work with a Masters degree (MSW) and a Master of

Science in Health Informatics from Northern KY University. Mr.

Cecil also has a Masters in Divinity (MDiv) and Religious

Education. He is currently working towards a Masters in

Information Systems at Murray State University.

Mr. Cecil is a Licensed Clinical Social Worker and a member of

the National Association of Social Workers and the Academy of

Certified Social Workers and currently serves as treasurer of the

KY PACE Committee. He is a life member is the Golden Key

International Honor Society and Beta Gamma Sigma. Hank is also

a member of the Healthcare Information and Management

Systems Society (HIMSS).

9/14/2020Copyright 2020 - Hank Cecil, LCSW

Disclaimer and LicensingThe information presented in this workshop is designed for educational purposes only. Application of this material to specific situations may vary depending on the participant’s circumstance. Discussion during the workshop is intended to be general in nature and cannot be comprehensive enough to consider all the relevant variables for specific circumstances. The presenter makes no claim to be providing clinical consultation, technical support, or legal advice to participants. Participants are encouraged to consult with qualified professionals regarding the management of legal issues and technical issues specific to their situation. The dissemination of this product to the viewer does not create an ownership right on the part of the viewer of this product. The viewer has a license to use the product for the duration of this presentation and may retain any materials distributed during this presentation to review for reference. Ownership of the product and all intellectual property rights therein shall remain at all times with the author of this product. Any other use of the product by any person, business, corporation, government organization or any other entity is strictly forbidden and is a violation of this license agreement. This publication and/or content via electronic access, or any portion thereof, may not be copied or disseminated, or made publicly available in any form, including but not limited to print or electronic form, recording, or by any means or otherwise downloaded or stored in an electronic database or retrieval system without the express written consent of the author. If you are interested in obtaining a license for use on a local network or would like to reprint any portion of the publication, please contact the author.


What’s our purpose here? Describe how the telehealth medium can be used for clinical interventions and

use appropriate tools for telehealth practice.

Establish safe and ethical practice with clients


Terms

Telemedicine

Telehealth

Telebehavioral health

Telemental health

Teletherapy

Telepsychotherapy

Telepsychiatry


What is Telehealth? For purposes of this section, "telehealth" means the use of interactive audio, video, or other

electronic media to deliver health care. It includes the use of electronic media for diagnosis, consultation, treatment, transfer of health or medical data, and continuing education. (KRS 335.158(3) July 14, 2000)

"Telehealth": (a) Means the delivery of health care-related services by a health care provider who is licensed in Kentucky to a patient or client through a face-to-face encounter with access to real-time interactive audio and video technology or store and forward services that are provided via asynchronous technologies as the standard practice of care where images are sent to a specialist for evaluation. The requirement for a face-to-face encounter shall be satisfied with the use of asynchronous telecommunications technologies in which the health care provider has access to the patient's or client's medical history prior to the telehealth encounter; (b) Shall not include the delivery of services through electronic mail, text chat, facsimile, or standard audio-only telephone call; and (c) Shall be delivered over a secure communications connection that complies with the federal Health Insurance Portability and Accountability Act of 1996, 42 U.S.C. secs. 1320d to 1320d-9. (KRS 304.17A-005 Definitions for subtitle. (44))

Health Resources and Services Administration (HRSA) defines telehealth as “the use of electronic information and telecommunications technologies to support long-distance clinical healthcare, patient and professional health-related education, public health and health administration.”

Benefits and evidence of effectiveness


Professional ethics codes

All codes the address technology generally address:

Informed consent specific to technology including risks and benefits, and the

possibility of technology failure

Compliance with applicable laws, including regarding the location of the

clients

Appropriate training in the technology being used

Assessment of appropriateness of clients for telehealth

Reasonable steps to ensure data security and confidentiality


NASW Code of Ethics Preamble

Technology-assisted social work services - any social work services that involve the use of computers, mobile or landline telephones, tablets, video technology, or other electronic or digital technologies; this includes the use of various electronic or digital platforms, such as the Internet, online social media, chat rooms, text messaging, e-mail, and emerging digital applications.

1.03 (g) Assess the clients’ suitability and capacity for electronic and remote services

1.04 Social Worker’s Competence

d) Ensure that they have the necessary knowledge and skills to provide such services in a competent manner. This includes an understanding of the special communication challenges when using technology and the ability to implement strategies to address these challenges.

e) Comply with the laws governing technology and social work practice in the jurisdiction in which they are regulated and located and, as applicable, in the jurisdiction in which the client is located.


Telehealth landscape


Where is the

Clinician?Where is the

Client?

Both in the

same State?

Clinician in one

state and

client in

another State?

Clinician in one

country and

client in another

country?

Telehealth practice Ethics cannot be forgotten or put on the shelf during the emergency

A written signed consent for telehealth is required.

Maintaining boundaries is critical now that the clinician is “in” the client’s

home.

Set up your practice to be successful – what you did in person is now

transitioned to online; the rules are the same and different

OCR enforces HIPAA; state laws can be stricter

Business associate agreements

● HIPAA compliance○ Products or service platforms do not make you compliant but can help prevent you

from being noncompliant or committing violations.○ Keep the process in mind, not a “HIPAA compliant” product!


Risk Management● Know the rules:

○ Licensing Board

○ Ethics Codes

○ State Laws and regulations (mandatory reporting, mental health emergencies)

○ Federal laws and regulations (HIPAA, HITECH, - CFR)

● Be insured○ Does your professional liability insurance cover telehealth?

● Payer rules vs licensure rules

● Be licensed/permitted to practice○ The licensing board where the client is located at the time of

services has jurisdiction in most states.○ The state that licenses you.○ Many states allow temporary practice, and many, but not all,

have opened it for COVID-19


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■ SimplePractice■ VSee■ SecureVideo■ Thera-link■ CounSol.com■ WeCounsel.com■ Evisit.com■ Updox■ GoToMeeting

■ Doxy.me■ Skype for Business■ Microsoft Teams■ Zoom Healthcare■ Google Meet (G Suite)■ Cisco Webex Meetings/Webex

Teams■ Thera-link■ Amazon Chime

SOME PLATFORMS THAT CLAIM “HIPAA-COMPLIANCE”

More Platforms - BAA

CounsSol

Doxy.me

TheraPlatform

WeCounsel

Simple Practice

BetterHelp**

Talkspace**

Regroup

FaceTime*

Skype*

TheraNest

TheraSoft

TherapyNotes

MyClientsPlus

Clocktree

blinksession

Facebook messenger*

Google Hangouts*


Asynchronous Communications

Email

○ Secure email: Hushmail, LuxSci,

etc.

○ Client portals

○ Conventional w/ BAA: GSuite,

Office 365

■ need client consent for

nonsecure communications

Texting

● Secure texting - BAA

○ Tiger, Signal

○ SpruceHealth, OhMD

○ Client portal apps


Voicemail Faxes

VoIP - BAA

Websites Marketing

Advertise where you are licensed

Your qualifications to do telehealth – training and experience

Areas of expertise

Testimonials?

Getting referrals

Intake forms

Telehealth form

Privacy notice

Policies and procedures

Sending blank documents not a problem

Receiving completed forms and signature must have security (HIPAA/SAMHSA)


Scope of Competence

State requirements for telehealth training vary widely

Adequate understanding of the technology being used

Knowledge of how to manage general troubleshooting issues

Protocols for managing connection issues and crises


Informed Consent● Inform clients of risks and benefits

○ Access, ease of use of tech

○ Potential for failure, privacy/confidentiality

● Appropriateness for the medium○ Clients must be informed that you will be assessing this each

session

● Inform client about safety and failure plans/alternate contacting

● Tell the client what their role is○ Client needs to make their space private; coach clients on how to set

up equipment for clinical effectiveness.○ Online relationships are different; coach clients to stay aware that you

are real, and you are doing therapy.

● Talk about recording and time zones

● Communications and Social media policy

● Written and signed consent – DocuSign, Adobe


© Copyright 2020 – Starship Care, LLC - Hank Cecil, LCSW

On-Camera Effectiveness (for you and your client)

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Lighting

Camera placement/angle

Posture

Behavior – no eating or drinking; hands to face

Picture-in-Picture

Environment/backgrounds

Clothing

Technical

Close browser tabs and other apps bothcomputers that are using the Internet

Ask clients to put a light behind their camera -- make sure you can see theirface(s)/body(ies).

Use the biggest screens you can and expand each other to full screen.

Check cameras and microphones on both computers

Network speed test

Session Prep and Flow● Assess client appropriateness

○ Will the medium get in the way of therapy?

○ Do you have the skills to remotely help this person with their particular

issues? No internet?

○ Do you need a “client support person” to help ensure safety?

○ How does the client know you are licensed?● Ensure psychological and scene safety for the client

○ Have the client show you the room

○ Create safe words/expressions with clients whose home environment may

not be so safe, or someone enters the room, and to verify identity● Make a safety plan

○ Where will they go if they are in danger or decompensate?○ Who can you contact if they have any emergency, mental or physical?○ Do you need a client support person who can help, or you can contact

for assistance.○ Remember: they are not in your office! Are they even in your local

area? Know where your client is!


Session Prep and Flow

● Make a tech recovery plan○ Usually, this means talking about using the phone as a backup in

case your videoconferencing software fails for some reason or other reasons for an interruption (power failure)

○ Never let a dropped connection be how you end a session!

● Deliver printed materials securely when there is PHI

○ Downloaded from your website

○ Client portal

○ Secure email

● Document the address of the client’s location at time of service and how you know

their identity.

● If doing phone, emailing, or texting communication, consider establishing a code

word or phrase that confirms the client’s identity, like a password they do not give

out

● Private messenger services like What’s App?


Payment● What is your payment method – checks, credit/debit cards?

● Remote payment methods – Square, PayPal, Venmo, Cash App● Does it protect confidentiality?

● Normally, insurance won’t cover phone sessions outside of some rural areas.

● Many are changing this for COVID-19, so phone sessions might be paid. Check with your companies (or do self pay.)

● KY Medicaid is reportedly paying for phone calls but at a lower rate

● KY Medicaid has paid for telehealth with parity to in-person

● Each commercial insurance company can set their own rules and even technology to be used.

● Medicare is allowing the home to be the “originating site” (the residence/home)● Clinician – “distant site”

● Place of service – 02

● Modifiers – GT, GQ, 95 specific the payers


A word about CFR part 42 (SAMHSA)

there has been an increased need for telehealth services, and in some areas

without adequate telehealth technology, providers are offering telephonic

consultations to patients.

In such instances, providers may not be able to obtain written patient consent

for disclosure of substance use disorder records.

patient identifying information may be disclosed by a part 2 program or other

lawful holder to medical personnel, without patient consent, to the extent

necessary to meet a bona fide medical emergency in which the patient’s prior

informed consent cannot be obtained.


© Copyright 2020 – Starship Care, LLC - Hank Cecil, LCSW

Concurrent issues deferred for now

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● Risk assessments with telehealth

● Clinical opportunities and difficulties in telehealth

● Children, group therapy and family therapy logistics and techniques

● Preparing to work in across state lines --finding local help, emergency services, mandatory reporting, etc.

● Digital security standards and HIPAAcompliance

● Online disinhibition effect and other clinical considerations of remote teletherapy

● Working with “originating sites” -- other service locations; who performs services for the client?

● Marketing and use of your website for a telehealth practice; testimonials

● Technology selection to support your practice’soperations

● Home office setup and boundaries

● Reimbursement issues and signing contracts

● Google searches

● Cultural awareness with technology

Policy Needs

Notice of Privacy Practices (NPP)

Telehealth in general

Communications – contact between sessions

Social media

Crisis availability


HIPAA/HITECH

Breach reports to HHS and public

As required by section 13402(e)(4) of the HITECH Act, the Secretary must post

a list of breaches of unsecured protected health information affecting 500 or

more individuals.


Name of Covered

Entity

Covered Entity

Type

Individual

s Affected

Breach

Submission Date

Type of Breach Location of

Breached

Information

Business

Associate

Present

HealthFirst Bluegrass Healthcare

Provider

971 8/21/2020 Hacking/IT

Incident

Email No

Kentuckiana Regional

Planning and

Development Agency

Healthcare

Provider

3663 6/5/2020 Hacking/IT

Incident

Desktop

Computer,

Email

No

HIPAA Penalties


Tier 2 - The CE "knew or by reasonable

diligence would have known" of the

violation, though they did not act with willful neglect

Tier 4 - The CE "acted with willful neglect" and failed to make a

timely correction

Tier 3 - The CE "acted with willful neglect" and corrected the

problem within a 30-day time period.

Tier 1 - The CE did not know and clould not

have know of the breach

$10,000 -

$50,000 per

incident up to

$1.5 million

$50,000 per incident

up to $1.5 million

$1,000 - $50,000

per incident up

to $1.5 million

$100 -

$50,000 per

incident up

to $1.5

million

Payers and laws Major confusion

Payers can choose to pay providers for any service they want

Licensed clinicians may not be legally allowed to provide the service to the

client.

Licensed clinicians may not be legally allowed to provide the service in the

location.

Remember: Just because a payer is willing to pay for something does not

mean that it is legal for the clinician to do it.

Clinician and employer


Self-care Eye-strain – Staring at a computer screen for long periods of time –

blue light

Focusing on non-verbal cues

Back-to-back appointments

Cell phones, people, and other distractions in the client’s home or

your location (is it your home?)

Increased potential for boundary crossings/violations

Loss of connection – did the client just turn you off literally?

Disinhibitions – is the client saying/acting differently online than in

person?

Who can you debrief with and consult with?


Future developments

US Congress

State actions

Medicare

Medicaid

Commercial insurance

Hybrid models


Takeaways

Know your ethics

Know the laws

Know your payer

Know your employer

Know your competence and limits

Know the limits of technology – “technology is great when it works.”

Stay safe and get consultations as needed


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