About Us | Chapters | Advertising | Join
The Legal Department articles are not intended to serve as legal advice and are offered for educational purposes only. The information provided should not be used as a substitute for independent legal advice and it is not intended to address every situation that could potentially arise. Please be aware that laws, regulations and technical standards change over time. As a result, it is important to verify and update any reference or information that is provided in the article.
As so many continue to work remotely during the pandemic, CAMFT’s Sara Jasper, JD, addresses the legal and ethical considerations for psychotherapists who are working from home.
Sara Jasper, JD Staff Attorney The Therapist November/December 2020
The coronavirus pandemic has led to significant changes within the practice of psychotherapy. For health, safety, and financial reasons, many practitioners are working from home. This article offers guidance for those whose new reality involves working out of home office.
Considerations When Practicing From Your Home When the pandemic first made its way to the United States and statewide shelter-in-place orders were issued, many of you transitioned to practicing telehealth from the safety of your homes. By all accounts, at-home practice will remain a necessity for many for the foreseeable future and may even become widely preferred. At-home practice may take the form of telehealth-only services or involve face-to-face services provided from a home office. Regardless of the type of services offered, you should contact your local municipalities1 to determine whether there are any zoning laws and/or covenants, codes, and restrictions that prevent you from regularly providing psychotherapy services from your home.
Consider this example of a practitioner/business owner in San Diego navigating this process: A psychotherapist endeavoring to practice out of a home office within the city of San Diego would first want to review the section of San Diego’s Municipal Code related to home occupations and consult with the city’s Economic Planning and Development staff. Home occupations are businesses such as home offices or service providers conducted by city residents on the premises of their homes. Home occupations, including psychotherapy practices, are considered separately regulated residential uses.2 In the City of San Diego, when requirements for home occupations can be met, a special Neighborhood Use Permit is not necessary. If a San Diego-based business wishes to deviate from the home occupation regulations or cannot comply with the regulations, that business would then need to file for a Neighborhood Use Permit. In certain situations, a business owner may also need to work with other county or state agencies to obtain additional permits.3
Once the issues related to zoning, codes, and restrictions are addressed, you may also need to obtain a Business Tax Certificate or business license prior to beginning operations in order to lawfully operate. Most counties and cities require home businesses to be properly licensed regardless of how small or profitable. Business licenses can typically be obtained through an Office of the City Treasurer, some of which have a Business Tax Division. Generally speaking, a penalty will be imposed if the form is filed late.
This information is just an example of what may be required, so it is important to consult first with the applicable local jurisdiction to find out the specific requirements for the city and county where your home office is located. To help business owners identify the appropriate entity and office to contact to receive information about home occupation regulations, permits, and business licenses, the California Governor’s Office of Business and Economic Development has a web-based assistance program called CalGold, which can be found at www.calgold.ca.gov. For more information about business licenses, read CAMFT Staff Attorney Luke Martin’s article “Marvelous Business Licenses” in the March/ April 2020 issue of The Therapist magazine.
Practicing Telehealth From a Home Office As a matter of necessity or convenience, you are likely offering telehealth services to patients from your home office. When clinically appropriate, telehealth is a widely recognized method of offering treatment via communication technologies such as videoconferencing and telephone. While California law does not require training to provide telehealth services, it is important that you are competent in and knowledgeable about using technology to provide treatment.
The BBS strongly encourages the use of HIPAA-compliant mechanisms for the delivery of telehealth services, and if you are a covered entity you need to comply with HIPAA regulations. As a result of the pandemic, however, HIPAA-covered entities that would typically be responsible for complying with HIPAA rules, including obtaining a Business Associates Agreement (BAA) from companies providing telehealth platforms, will not be penalized for failing to obtain a BAA or for being noncompliant with HIPPA rules during the state of emergency.4 If you are offering telehealth services, consider the following resources available on camft.org:
If you are contracted with, or wish to contract with, health plans or Medi-Cal Managed Care Plans (MCPs), you should contact the plans’ provider relations departments to determine policies and procedures related to telehealth, working from home, and home-based practice. These policies and procedures will vary among plans.
Given the toll the Coronavirus pandemic has taken on psychotherapy practices, some of you have been forced to, or have chosen to, give up your offices. While the BBS allows you to list a home address or a P.O. Box as the address of public record, many health plans have historically prohibited in-network providers from having home-based practices. To CAMFT’s knowledge only a few plans, such as Optum and United Behavioral Health, are allowing home-office, telehealth-only practices indefinitely. Most plans are still requiring in-network providers to maintain an office. Do not, however, be discouraged. Many health plans are in the midst of deciding how they will address the issue of home-based practices. Since so many providers are trading in their commercial offices for at-home/home-based practice, the plans may be forced to adopt new policies that allow for home-based practices or face a shortage of providers.
In September of 2020, the Department of Managed Health Care (DMHC) issued an All Plan Letter (APL 20-32) to health plans offering guidance about how to meet provider directory requirements under the California Health and Safety Code while protecting providers’ right to privacy. The APL acknowledges that as a result of the pandemic many providers are working from home and should not be required to have their home addresses listed within plans’ provider directories. According to the APL, during the California declared state of emergency a health plan shall not include a provider’s home address as the provider’s “practice address” in the plan’s provider directory unless the provider expressly authorizes the plan to do so. As an alternative to listing the provider’s home address as the “practice address,” the plan may continue to list the provider’s practice address as of March 3, 2020 (the day before the Governor declared a state of emergency in California).
Pre-licensees Working From Home/Offering Telehealth Services From Home Pre-licensees should follow California law as outlined in the BBS’s Statement on Coronavirus Disease 2019 (COVID-19) and Telehealth. If you are a trainee, you are able to provide telehealth services if permitted by the agreement between your school and your workplace and if telehealth services are performed under the supervision of a properly qualified supervisor(s). Additionally, on May 6, 2020, the Department of Consumer Affairs (DCA) issued a waiver clarifying that student trainees are not required to provide “face-to-face” mental health services to complete their required training. Further, all registered associates are permitted to perform services via telehealth with clients located in California if under the supervision of a properly qualified supervisor(s).
Under the DCA’s May 6th waiver, all registered associates, regardless of the setting in which they are working, may obtain supervision via two-way, real-time videoconferencing. This waiver does not permit telephonic supervision of any pre-licensee under any circumstances.
Whether you are a trainee or an associate, be aware that while there are laws and waivers that allow pre-licensees to receive supervision via videoconferencing, no changes have been made to the laws that determine where trainees and associates may practice. Likewise, no waivers have been put forward to clarify this issue. For example, there is no law or waiver that explicitly gives associates employed through a private practice or a for-profit corporation the freedom to practice anywhere other than the location of his or her employer (i.e. where the employer/supervisor regularly conducts business). CAMFT strongly encourages any pre-licensees who are working from home to carefully document and be able to demonstrate their reasons for working from home.
Other Practical Considerations When Working From Home and/or Establishing a Home Office Although you may determine it is possible to run a psychotherapy practice out of your home lawfully and that your contracted health plans allow home offices and home-based practices, there are other important issues to ponder, including but not limited to the following:
As the above questions suggest, a home-based psychotherapy practice has the potential to impact not only you and your family, but also your patients. While an at-home office may be a necessity and offer financial benefits, the decision to work from home should not be made without first giving thorough thought to the legal and ethical standards required of a sound psychotherapy practice. You must act in the best interests of your patients and be sure you can meet your legal and ethical obligations. Below are the statutes and Code of Ethics provisions that should guide your decision-making process when assessing whether a home-based practice is truly viable:
CAMFT Code of Ethics Section 3 Informed Consent and Disclosure Marriage and family therapists respect the fundamental autonomy of clients/patients and support their informed decision-making. Marriage and family therapists assess their clients’/patients’ competence, make appropriate disclosures, and provide comprehensive information so that their clients/patients understand treatment decisions.
CAMFT Code of Ethics Section 3.1 Informed Decision-Making Marriage and family therapists respect the rights of clients/patients to choose whether to enter into, to remain in, or to leave the therapeutic relationship. When significant decisions need to be made, marriage and family therapists provide adequate information to clients/patients in clear and understandable language so that clients/ patients can make meaningful decisions about their therapy.
Practice Tip: Prior to telehealth sessions from your home or face-to-face sessions at your home, fully inform patients about the location of your practice, any third parties that will be on your premises during sessions, and the steps you have taken to protect their confidentiality within the practice setting. If you have small children who may enter your home office, consider purchasing a privacy filter that makes it harder for others to see your computer screen.
California Business & Professions Code Section 4982 (m) Failure to maintain confidentiality, except as otherwise required or permitted by law, of all information that has been received from a client in confidence during the course of treatment and all information about the client that is obtained from tests or through other means.
Practice Tip: Consider ways that you can best protect the confidentiality of your patients.
CAMFT Code of Ethics Section 2.1 Disclosures of Confidential Information Marriage and family therapists do not disclose client/patient confidences, (including the names or identities of their clients/patients), to anyone except as mandated by law; as permitted by law; when the marriage and family therapist is a defendant in a civil, criminal, or disciplinary action arising from the therapy (in which case client/patient confidences may only be disclosed in the course of that action); or if there is an authorization previously obtained in writing. Such information may only then be revealed in accordance with the terms of the authorization.
Practice Tip: Reassure your patients that although you work from your home confidentiality laws still apply and you would never reveal patients’ confidential information to your family members, tenants, or neighbors.
CAMFT Code of Ethics Section 2.3 Maintenance of Client/Patient Records – Confidentiality Marriage and family therapists store, transfer, transmit, and/or dispose of client/patient records in ways that protect confidentiality.
Practice Tip: Be sure to have a lock on the entrance to your home office. Do not permit third parties to use your office unless all of your patients’ confidential information and/or records are locked away and out of sight. Do not allow third parties to have access to your personal computer or to folders within your personal computer where patient information and records are stored. Have a password on your work computer to reduce the likelihood that someone else in the home can see your files.
CAMFT Code of Ethics Section 4 Dual/Multiple Relationships Marriage and family therapists establish and maintain professional relationship boundaries that prioritize therapeutic benefit and safeguard the best interests of their clients/patients against exploitation. Marriage and family therapists engage in ethical multiple relationships with caution and in a manner that is congruent with their therapeutic role.
CAMFT Code of Ethics Section 4.1 Dual/Multiple Relationships Dual/multiple relationships occur when a therapist and his/her client/patient concurrently engage in one or more separate and distinct relationships. Not all dual/multiple relationships are unethical, and some need not be avoided, including those that are a result of geographic proximity, diverse communities, recognized marriage and family therapy treatment models, or community activities, or those that fall within the context of culturally congruent relationships. Marriage and family therapists are aware of their influential position with respect to clients/patients and avoid relationships that are reasonably likely to exploit the trust and/or dependence of clients/ patients, or that may impair the therapist’s professional judgment.
Practice Tip: Before conducting sessions with a new patient from your home office, discuss the importance of maintaining appropriate boundaries throughout the therapeutic relationship. Be clear that although you conduct sessions out of your home, you expect patients to respect your privacy. For patients you see in person, caution them against showing up unannounced or for reasons other than a scheduled therapy appointment.
CAMFT Code of Ethics Section 1.3 Treatment Disruption Marriage and family therapists are aware of their professional and clinical responsibilities to provide consistent care to clients/patients and to maintain practices and procedures that are intended to provide undisrupted care. Such practices and procedures may include, but are not limited to, providing contact information and specified procedures in case of emergency or therapist absence, conducting appropriate terminations, and providing for a professional will.
Practice Tip: Prior to holding the/strorapy sessions at a home office location, consider whether there is anything happening within your home that is likely to disrupt or interfere with the treatment of your patients. For example, if a contractor is coming out to your home, ask him or her to come outside of hours during which you typically offer psychotherapy.
Note: The above practice tips relate to homebased telehealth services and home-based face-to-face services. For more information about conducting psychotherapy sessions outdoors, watch CAMFT President Cathryn Leff ’s YouTube video “Therapy Outside of the Office: A Conversation with Cathryn Leff.” You can also read CAMFT Staff Attorney Kristin Roscoe’s article “A New Way of Life: The Ethics of Embracing the Outdoors.”
Insuring Your Home-Based Business When establishing an in-home private practice, take the time to explore and carefully evaluate the different types of insurance policies and coverage limits available to you. Malpractice or professional liability insurance is designed to protect you when you are rendering professional services. Premises liability or general liability insurance is designed to protect you when there is an accident on your property or damage to the property. While malpractice or professional liability insurance policies offer important protections, malpractice policies may only provide limited general liability coverage for incidents such as slip-and-falls or property damage. Even riders or addendums to a renter’s or homeowner’s policy may only offer limited coverage for your business. They may not include the type of extensive coverage needed to defend against the sort of claims that could arise as a result of having a home office/home-based business. To be adequately covered against liability claims as well as wide-ranging damage to business property, technology, files, and equipment, it may be wise to consider a business owner’s policy or a business owner’s policy with endorsements for incidents such as data breaches. To find out what kind of insurance policy or policies best meet your business needs, work with a trusted insurance broker.
Additional Resources Here are a few more helpful resources found on the camft.org website and other websites for therapists who are considering working from home:
Conclusion A home-based psychotherapy practice may ultimately be a workable, long-term solution for you. Before making your home a part of your business plan, think about getting advice and/or assistance from not only an insurance broker, but also an accountant, an attorney, colleagues and perhaps even your personal psychotherapist to ensure you have fully explored the impact working from home may have on you, your family, your patients, and your business.
Sara Jasper, JD, CAE, is a staff attorney for CAMFT. Sara is available to answer member calls regarding legal, ethical, and licensure issues.
Endnotes
1 The term municipalities refers to your city and/or county governments. These government entities may have jurisdiction over home offices that exist within their limits. 2The regulations for home occupations within San Diego’s city limits can be found within San Diego Municipal Code Chapter 14, Article 1 of Separately Regulated Residential Uses, Division 3, Section 141.0308. 3 To help business owners identify the appropriate entity and office to contact to receive information about home occupation regulations, permits, and business licenses, the California Governor’s Office of Business and Economic Development maintains a web-based assistance program called CalGold. The website’s address is www.calgold.ca.gov. 4 The March 17, 2020, Notice from the Office of Civil Rights (OCR), the division within the U.S. Department of Health and Human Services (HHS) responsible for enforcing certain HIPAA regulations, can be found at https://www.hhs.gov/hipaa/forprofessionals/ special-topics/emergency-preparedness/notificationenforcement- discretion-telehealth/index.html. 5 For the latest information on these topics, consider signing up for notifications from the BBS. If you have a Facebook account, you can also like the BBS’s Facebook page, which is regularly updated. Follow CAMFT’s Facebook page and review our newsletters each month to make sure you are receiving the latest information. For more information about the BBS’s current waivers, visit the Board’s website at www.bbs.ca.gov. 6 For more information about Americans with Disabilities Act regulations and compliance practices for psychotherapists, see CAMFT Staff Attorney Bradley Muldrow’s article “Breaking Down Barriers to Care.”
This article is not intended to serve as legal advice and is offered for educational purposes only. The information provided should not be used as a substitute for independent legal advice and it is not intended to address every situation that could potentially arise. Please be aware that laws, regulations and technical standards change over time. As a result, it is important to verify and update any reference or information that is provided in this article.