Leading Psychology into the

Telehealth World: How Does it Work? Legal & Regulatory Issues

State Leadership Conference -- Washington, DC

March 5, 2011

Deborah C. Baker, JD Director of Prescriptive Authority & Regulatory Affairs

Copyright 2011

American Psychological Association

Practice Organization

Do not reproduce without permission.

Telehealth Statutes

California’s Telemedicine Development Act Cal. Bus. & Prof. Code §§ 2904.5, 2290.5

Kentucky’s Telepsychology Statute Kentucky Rev. Stat. § 319.140

Vermont’s Telepractice Regulation 26 Vermont Stat. Ann. § 3018

State Psychology Licensing Board Policies

on Telehealth

Some state psychology boards have considered this issue & issued rules, policies or advisory opinions on telehealth practice.

Colorado – no written policy, verbal advice from board staff

Florida – see Board website for opinion

Georgia -- Ga. Admin. Rule

510-5.04(2)

Massachusetts – see Board website for opinion

North Carolina – see Board website for opinion

Texas – see Board website for opinion

Virginia – see Counseling Board website

Wisconsin – see Board website for opinion

Informed Consent

• What are specific state requirements for informed consent?

• The following states have enacted informed consent statutes, specifying what constitutes a valid consent for telehealth:

Arizona, California, Georgia, Kentucky, Oklahoma, Texas, Vermont & Wisconsin

• In most of those states, telehealth services do not include telephone, fax or email.

State Informed Consent Requirements

• California – Cal Bus & Prof Code § 2290.5

• Arizona – ARS §36-3601 et seq.

• Oklahoma – §36-680 ⇒ Informed consent must be verbal & written

⇒ Patient’s signed informed consent be obtained prior to the delivery of telehealth services

⇒ All existing confidentiality provisions apply

⇒ Description of potential risks, consequences, & benefits of telemedicine

⇒ Patient may withhold or withdraw consent at any time without affecting the right to future care or treatment, or risking loss or withdrawal of any program benefit

⇒ Dissemination of identifiable patient information or images from telemedicine interaction to researchers or others may not occur without patient consent

State Informed Consent Requirements,

continued

• Kentucky -- 201 KAR 26:310 ⇒ Informed consent must be obtained prior to telemedicine encounter

⇒ All existing patient confidentiality provisions apply

⇒ Inform patient about the limitations of using technology; potential risks to confidential information; and potential risks of disruption

⇒ Inform patient about when & how the psychologist will respond to routine electronic messages

⇒ Description of circumstances when psychologist would use alternative communications for emergency purposes

⇒ Description of who else may have access to client communications; how communications can be directed to the psychologist; how electronic communications from the patient are stored; and mandatory abuse reporting requirements

State Informed Consent Requirements,

continued

• Georgia – Ga. Comp. R. & Regs. r. 510-5-.07

• Texas – Tex. Occ. Code §§ 111.001-111.004

• Vermont – 26 VSA §3018

• Wisconsin – see Wisconsin Psychology Examining Board website ⇒ Provision of psychological services by electronic transmission (e.g.,

internet, telephone, computer…) meet the same legal and ethical standards as psychological services provided in person

⇒ Existing patient confidentiality provisions apply

⇒ Vermont specifies information that must be disclosed to patients: Name, location & telephone number of the psychologist

Type of license, full title & jurisdiction where licensed

What the psychologist is trained & licensed to do

To whom the client may make a complaint & how

Limits & limitations on internet practice & service delivery

Telehealth reimbursement issues

• Medicare Balanced Budget Act of 1997 (BBA)

Benefits Improvement and Protection Act of 2000 (BIPA)

• Medicaid

• Private Payers

Telehealth reimbursement Issues

• Lack of universal reimbursement policy for

telehealth services among public & private

payers

• Challenge in collecting reimbursement data

due to many providers often not billing

telehealth services differently than face-to-

face services (e.g., special CPT codes or

modifiers) unless required to do so

Medicare telemedicine/telehealth

reimbursement policies

• Psychologists are included in the list of qualifying practitioners who may bill Medicare for telemedicine services

• Telemedicine reimbursement on par with reimbursement for same face-to-face service

• Interactive audio-video telecommunications, not store-and-forward (except federal demonstration projects in HI & AK)

• Services provided to beneficiary located a in rural health professional shortage area or a county outside of an MSA are eligible

• Claims must include a telehealth modifier (GT)

• CMS lists eligible sites where telemedicine services may be provided

• CMS also lists those CPT codes available for telemedicine reimbursement

Medicaid Telehealth Reimbursement

Policies

• CMS has not formally defined telemedicine for

the Medicaid program

• Federal Medicaid law does not define telemedicine as a distinct service

• States have to option to offer Medicaid reimbursement for telemedicine/telehealth

• Medicaid reimbursement can vary widely in terms of the types of services eligible for reimbursement, eligible distant providers, and payment methodologies

Medicaid telehealth reimbursement policies

• As many as 35 states allow for at least some reimbursement for telehealth services

• Medicaid reimbursement for telepsychological services may be available in as many as 13 states:

Alaska Kansas Oklahoma

Arizona Maine Utah

California Michigan Virginia

Colorado Nebraska

Hawaii North Carolina

• Coverage, billing requirements, etc. vary by state

Private Payers – Telehealth Reimbursement

• To date, 12 states have enacted legislation requiring insurance companies to pay for services delivered through telehealth

California Maine

Colorado New Hampshire

Georgia Oklahoma

Hawaii Oregon

Kentucky Texas

Louisiana Virginia

• All 12 states mandate coverage, but not all require reimbursement rates on par with rates for face-to-face services

• Despite few state reimbursement mandates, growing evidence of reimbursement by private payers

Private Payers – Telehealth Reimbursement

• 2003 American Telemedicine Association survey revealed 38 programs in 25 states were receiving reimbursement from private payers

• Blue Cross/Blue Shield (BCBS) identified as a leading payer for telehealth services

• Other private payers tended to follow BCBS

• 2007 survey indicated 130 private payers reimbursing for approximately 75 clinical specialty services

Privacy and security issues

• Federal privacy & security standards: Health Insurance Portability and Accountability Act of 1996 (HIPAA), Public Law 104–191

Privacy Rule

Security Rule

• State privacy & security laws

HIPAA Privacy Rule

• Protection against intentional disclosures of

protected health information (PHI)

• Use of reasonable safeguards to protect

patients’ PHI from unauthorized and

unintended disclosures or uses

• But the “reasonable safeguards” requirement

does not spell out specific actions or practices

for complying with Privacy Rule.

HIPAA Security Rule

• Practitioners must engage in initial and ongoing risk management analysis: Identify specific risks to electronic PHI

Select security measures most appropriate and most reasonable to implement

Focus on reducing risk of disclosure to an acceptable risk level

• No mandate regarding specific security measures or technology, such as encryption or password protection.

HIPAA Privacy Rule vs Security Rule

• Privacy Rule applies to all forms of PHI

Electronic, paper and verbal

• Security Rule applies only to electronic PHI

Electronic PHI does not include telephone, fax or videoconferencing

• The focus of both Rules is on reasonableness

• Neither Rule prohibits using email in communicating with patients

• Only Privacy Rule applies to videoconferencing

Next steps?

• APA Council of Representatives just approved creation of a joint task force with ASPPB and APA Insurance Trust to develop guidelines on telepsychology.

• Continued collaboration with the American Telemedicine Association (Telemental Health Special Interest Group) on telemental health information, policies & resources

Questions? Deborah C. Baker, J.D.

Director of Prescriptive Authority & Regulatory Affairs Legal & Regulatory Affairs, APA Practice

dbaker@apa.org (800) 374-2723