New Platforms, Same Laws: Guidance for Navigating Common Legal and Ethical Issues Experienced by Providers Working with Online Therapy Platforms

by Bradley J. Muldrow, JD
Staff Attorney
The Therapist
May/June 2021

The success of online therapy platforms¹ such as BetterHelp, Talkspace, Regain, Pride Counseling, Teladoc, and Online-Therapy.com has helped to destigmatize mental health services and make therapy more accessible to millions of patients across the globe. New developments in the delivery of mental health services naturally raise novel legal and ethical questions. This article will address the most common legal and ethical issues CAMFT members encounter when serving as providers for online therapy platforms.

Interstate and International Telehealth Services
CAMFT staff attorneys field numerous calls from providers working with online therapy platforms who would like to know whether they are permitted to work with patients physically located in other states or countries. These concerns typically arise when online therapy platforms “match” providers with (i.e. assign them to) out-of-state patients. In some cases, online therapy platforms do this inadvertently. However, at least one online therapy platform has actively sought therapists who are willing to work with out-of-state patients regardless of the other states’ licensing laws.

Therapists who are interested in learning more about the broader topic of providing treatment across state lines should review Regulatory and Legal Considerations for Telehealth by Ann Tran-Lien. For purposes of this article, it is sufficient to acknowledge that, generally, therapists are not permitted to initiate treatment with patients who are physically located in states or countries in which the therapists are not licensed.² In other words, if an online therapy platform matches a California therapist with a patient who is physically located in Arizona, the therapist would only be permitted to initiate treatment with that patient if the therapist is also licensed in Arizona.

Additionally, it is important to keep in mind that most courts will view that therapy occurs in the jurisdiction (i.e. the state or country) in which the patient is physically located. Therefore, even if the patient in the above scenario owns property in California or maintains a mailing address in California, the therapist would generally need to have an Arizona license to begin treatment with the patient since the patient is physically located in Arizona. To prevent clinicians from inadvertently providing services to patients who are physically located outside of California, BBS regulations require providers to “[v]erbally obtain from the client and document the client's full name and address of present location, at the beginning of each telehealth session.”³ (emphasis added) 

Practice Pointer 1:  Providers for online therapy platforms should be aware that their patients may not be knowledgeable about the jurisdictional issues pertaining to the practice of telehealth and/or may have received inaccurate information about telehealth law from the online therapy platforms. For example, one online therapy platform’s informed consent requires patients to agree to the inaccurate statement that therapy takes place in the state where the therapist is located. Such claims may lead patients to believe that they can be anywhere in the world and still receive treatment from providers located in their state of residency. It is critical that therapists address the limits of therapy across state lines with their patients before beginning treatment to ensure that both parties are on the same page.

Note: Although telehealth regulations generally prohibit practitioners from initiating treatment with out-of-state patients, in some circumstances practitioners may be able to provide temporary treatment to California patients who are leaving the state for continuity of care purposes. For more information on this topic, see CAMFT’s latest law and ethics lunch and learn webinar: A New Year with Our New Normal: Telehealth in the Age of COVID-19. The webinar is offered by CAMFT staff attorneys Kristin Roscoe, JD and Bradley Muldrow, JD and can be accessed by logging in to CAMFT’s on-demand learning library.

Patient Anonymity
Some online therapy platforms allow patients to be “anonymous” to their therapists. When patients utilize this option, the platforms typically provide their therapists with the patients’ usernames but withhold other identifying information (e.g. the patients’ actual names, addresses, etc.). Although many patients find anonymity in therapy to be an appealing alternative, this practice presents multiple legal and ethical challenges for California providers.

First, as discussed in the previous section, the BBS requires therapists to verbally verify and document patients’ full names and the addresses of their present locations at the beginning of each telehealth session. Consequently, California therapists who allow their telehealth patients to remain anonymous are in violation of BBS telehealth regulations. The fact that patient anonymity is a key selling point for some online therapy platforms despite its noncompliance with California law raises two important issues for therapists to consider:

Practice Pointer 2:  Most online therapy platforms hire therapists from across the country to serve users in all 50 states. Accordingly, providers should be aware that the policies and practices of these platforms are not always designed to comply with state-specific legal and ethical rules (e.g. BBS telehealth regulations). This observation leads to the next issue…

 Practice Pointer 3:  Therapists who work for online therapy platforms are responsible for ensuring their own legal and ethical compliance. Providers who violate their legal and ethical duties may be subject to civil liability or professional discipline from the BBS even if their actions were sanctioned or encouraged by the online therapy platforms they work for. When asked to carry out policies or engage in practices that deviate from their legal and ethical training, providers for online therapy platforms should obtain appropriate legal consultation.

There are also clinical reasons not to allow patients to remain anonymous. For instance, if a patient expresses a serious and imminent intention to harm themselves during session, the patient’s therapist would not be able to enlist the support of local psychiatric emergency services without the patient’s name and the address of the patient’s present location. Additionally, therapists who do not know their patients’ names may inadvertently create unethical dual relationships and conflicts of interest. For example, these therapists would have no way of knowing if they were concurrently treating two spouses, two siblings, an employer and their employee, etc. Providers for online therapy platforms should obtain key information about their patients (e.g. name, address, age, etc.) at the outset of treatment regardless of the platforms’ policies. If a patient would not like to provide their therapist with this information, the therapist should strongly consider offering the patient referrals to other practitioners or inviting the patient to request that the online therapy platform match them with another counselor.

Messaging-Based Therapy Services
Many online therapy platforms allow clinicians to provide messaging-based therapy services to patients. Such services are not to be confused with periodic “check-in” or scheduling text messages exchanged by therapists and patients between sessions. These online therapy platforms allow practitioners to provide therapy to their patients via text, audio, and/or video messages. Some companies allow patients and providers to engage in therapy-messaging throughout the day. Other companies allow patients to schedule therapy sessions during which the patients and their therapists communicate via messaging (as opposed to communicating over the phone or through videoconferencing). Since messaging-based therapy is a relatively new practice, its efficacy remains the subject of hot debate. In addition to weighing the clinical pros and cons of this form of treatment , it is also important for providers to consider key legal and ethical issues related to messaging-based therapy:

Malpractice Coverage
Perhaps the most important issue for therapists to consider before offering messaging-based therapy services is whether such services are covered by their malpractice insurance carriers. Malpractice insurance companies are often hesitant to guarantee coverage for newer forms of therapy. As many seasoned practitioners may recall, it took many years for malpractice insurance companies to begin covering EMDR. Providers who are interested in performing messaging-based therapy services should reach out to their malpractice carriers to verify: 1) whether their malpractice policies cover messaging-based therapy services; and 2) if so, whether there are any restrictions or limitations regarding the companies’ coverage of these services.

Clinically Appropriate Messaging-Based Therapy Practices
It is also important for providers to identify and adhere to clinically appropriate practices when providing messaging-based therapy services. It would be highly unusual for a licensed therapist to have received education and training on messaging-based therapy during their graduate studies. Consequently, many providers begin offering messaging-based therapy services for the first time once they begin working for online therapy platforms. Given that the practice of messaging-based therapy is evolving and more studies/research may be necessary to evaluate its efficacy, therapists are encouraged to assess the appropriateness of this form of treatment on a case-by-case basis and be able to demonstrate their competence to provide such services.

User Engagement-Based Compensation
Online therapy platforms often incentivize more frequent communication between patients and providers by basing providers’ compensation, in part, on user (i.e. patient) engagement. For example, a platform may pay its clinicians an additional fee based on how many words they type in messages to their patients. Under such an arrangement, if a platform offers its therapists five cents per word for messages to their patients, a therapist can make $25 by sending a 500-word message to one of their patients. Similarly, other platforms may pay their providers at a higher rate for exchanging a certain number of messages with their patients during a specified period. For instance, a platform may establish a normal rate of compensation for a therapist working with a patient during a given month. However, that platform may offer to pay the therapist at 125% of the normal rate if the therapist and patient exchange more than 30 messages during that month. Although these user engagement-based compensation systems may encourage increased therapist-patient contact, such systems can also give therapists an incentive to communicate with their patients more frequently than would be clinically appropriate or necessary. Clinically unnecessary communication between therapists and patients can blur healthy therapeutic boundaries and result in enmeshment and/or inappropriate dual relationships (e.g. therapist / friend, therapist / parent-figure, therapist / romantic interest, etc.). Additionally, clinically unnecessary therapist-patient communications that are solely motivated by financial gain may result in allegations of patient exploitation. CAMFT Code of Ethics Rule 4.7 provides “[m]arriage and family therapists do not use their professional relationships with clients/patients to further their own interests...” Accordingly, regardless of the compensation opportunities available to them, therapists working for online therapy platforms should ensure that their communications with patients are clinically relevant and appropriate.

Patient Records (Access and Retention)
It is also important that providers for online therapy platforms be aware of their companies’ policies regarding record access and retention. Some online therapy platforms require their providers to record their notes using the platforms’ electronic health records. These platforms do not allow their providers to keep paper records or store patient records in third-party electronic health records. Therapists who work for online therapy platforms with such policies should be sure to determine who is responsible for maintaining the therapists’ patient records for the legally-specified period should the therapists terminate their relationships with the platforms. If the therapist is responsible for maintaining the records following termination, the therapist should make sure that they know how to export their patient records from the online therapy platform to the therapist’s electronic health record (or other electronic record storage system). The therapist should take care to export all of their patient records prior to terminating their relationship with the online therapy platform to ensure that the records are not deleted before they can be preserved.

Practice Pointer 4:  Therapists working for online therapy platforms should strongly consider exporting their patient records from the online therapy platforms on a regular basis (if the platforms’ policies allow for record exportation). This practice will ensure that the therapists have access to their patient records in the event that their relationships with the online therapy platforms end abruptly, or if the online therapy platforms inadvertently delete the records, etc.

If the online therapy platform assumes responsibility for maintaining the therapist’s patient records post-termination, the therapist should ensure that they have a written agreement from the company to maintain the patient records. Such an agreement may be included in the professional services agreement between the therapist and the online therapy platform or in the platform’s terms of use or privacy policy. An email from the online therapy platform confirming the platform’s responsibility to maintain patient records post-termination will also suffice. It is important for therapists to keep written copies of these agreements to prevent confusion if the therapist ever receives records requests pertaining to patients they treated through the online therapy platform.

Practice Pointer 5:  After obtaining written confirmation of the online therapy platform’s agreement to maintain the therapist’s patient records, the therapist should familiarize themself with the platform’s record request protocols. This information will allow the therapist to direct patients they treated through the online therapy platform to the appropriate platform representative should these patients ever submit records requests to the therapist.

Practice Pointer 6: If the online therapy platform is responsible for maintaining patient records post-termination, the therapist should create a list of the patients they treated through the platform prior to terminating their relationship with the platform. The list will help the therapist remember who they treated while working for the platform should they receive records requests from former patients whose names they no longer recognize several years after leaving the platform.

Conclusion
The accessibility, affordability, and popularity of online therapy platforms provide a glimpse of what the future of psychotherapy may hold for patients in need. However, practitioners who provide services for these companies must take care to adhere to the laws and ethical rules of the present. These practitioners should obtain appropriate legal or clinical consultation when faced with unfamiliar or concerning legal, ethical, or clinical challenges.

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¹As used in this article, the term “online therapy platform” refers to online platforms that enlist the services of licensed clinicians to provide therapy to their users (e.g. BetterHelp, Talkspace, Regain, Pride Counseling, Teladoc, Online-Therapy.com, etc.). This term does not include video conferencing platforms, such as Zoom, Doxy.me, and VSee, that merely allow therapists to hold videoconferencing sessions with patients.
²16 C.C.R. §1815.5(e) provides “A licensee or registrant of [California] 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.” (emphasis added)
³See 16 C.C.R. §1815.5(d)(i)
⁴Id.
⁵See Healthline’s article “What’s the Deal with Text Therapy?”: https://www.healthline.com/health/mental-health/text-therapy