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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.
California law has long recognized telehealth as a form of delivery of health care and behavioral health services, but many psychotherapists practicing in the
state, including CAMFT members, have inquired as to the standards surrounding the rendering of telehealth services. As a result, the Board of Behavioral Sciences developed regulations on the standards of practice for telehealth that became effective July 1, 2016. This article provides an overview of the regulations.
By Ann Tran-Lien, JD,
Managing Director of Legal Affairs
Reviewed November, 2017 by Ann Tran-Lien, JD
With ever-increasing innovations in technology changing the way we interact with one another, it comes as no surprise that the practice of telehealth has increased in popularity in both the medical and behavioral health arenas. California law has long recognized telehealth as a form of delivery of health care and behavioral health services, but many psychotherapists practicing in the state, including CAMFT members, have inquired as to the standards surrounding the rendering of telehealth services. As a result, the Board of Behavioral Sciences (BBS) developed regulations on the standards of practice for telehealth that became effective July 1, 2016. All therapists licensed or registered with the BBS, who are interested in or are engaged in the practice of telehealth, should be familiar with these new regulations as failure to comply may result in an accusation of unprofessional conduct.
In California, “telehealth” is defined as a method to deliver health care services using information and communication technologies to facilitate the diagnosis, consultation, treatment, and care management while the patient and provider are at two different sites.1 The two most common modes of telehealth for psychotherapy are via 1) live videoconferencing either through a personal computer with a webcam or a mobile communications device with two-way camera capability, and 2) telephone. The BBS recognizes the practice of psychotherapy via telehealth as falling within its jurisdiction and subject to the same statutes and regulations that apply to in-person psychotherapy.2 Therefore, all California and/or federal laws regarding the confidentiality and privacy of health care information and a client’s right of access to his or her medical information apply to telehealth services. To read more about the general issues and recommendations related to telehealth, see CAMFT Paralegal, Alain Montgomery’s article in the January/February 2015 issue The Therapist, “The Basics of Telehealth .”
A Look at the Regulations
In order to practice marriage and family therapy, clinical social work, or professional clinical counseling via telehealth with a client who is physically located in California, the therapist must have a valid and current license or registration issued by the BBS.3 Therefore, LMFTs, LCSWs, and LPCCS who are licensed in other states must also hold valid California licenses or registrations in order to provide psychotherapy services, including via telehealth, to clients who are physically located in California.
It is important to note that these regulations do not mention MFT Trainees. Per Business and Professions Code Section 2290.5, MFT Trainees, while under appropriate supervision and working in lawful, exempt settings, may provide psychotherapy services via telehealth. The BBS does not have jurisdiction over any complaints filed against the MFT Trainee as MFT Trainees do not hold a registration or license issued by the BBS. Nevertheless, the BBS and CAMFT strongly encourage MFT Trainees to comply with these regulations as they establish the standard of care for marriage and family therapy services via telehealth in California.
Upon Initiation of Telehealth Services
The regulations require the therapist to engage in four specific one-time actions upon initiation of telehealth services to a client. The four actions are as follows:
For Each Telehealth Session
The regulations provide three actions the therapist must take each and every time he or she performs telehealth with a client. The three actions are as follows:
Providing Telehealth Outside of California
According to the regulations, therapists licensed or registered in California are permitted to 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 telehealth services are allowed by that jurisdiction.11 All fifty states, including Washington D.C., regulate the practice of marriage and family therapy, clinical social work, and professional clinical counseling.
According to the Center for Connected Health Policy, “States continue to pursue their own unique set of telehealth policies as more and more legislation is introduced each year. Some states have incorporated policies into law, while others have addressed issues such as definition, reimbursement policies, licensure requirements, and other important issues in their Medicaid Program Guidelines.”12
A few states have regulations or offered opinions, similar to California, on the provision of telehealth, to clients located in other states. According to the “Provision of Services via Electronic Means Adopted by North Carolina Marriage and Family Therapy Licensure Board (August 30, 2012),” “If a North Carolina licensee renders marriage and family therapy services electronically to an out-of-state client, it is recommended that the licensee contact the in the state in which the patient/client resides to determine whether or not such practice is permitted in that jurisdiction.” Likewise, the South Carolina Board of Examiners indicated in its statement, “Provision of Services via Electronic, Distance Professional Services (November 17, 2015)” the following: “The Board considers that the practice of counseling, marriage and family therapy occurs both where the therapist who is providing therapeutic services is located and where the individuals (patients/clients) who are receiving services are located. In order for an individual to provide counseling and therapy services in South Carolina, that individual must be licensed by the South Carolina Board for Counselors, Marriage and Family Therapists and Psycho-educational Specialist. On this basis, if an individual licensed in South Carolina renders services electronically to an out-of-state client, it is recommended that the licensee contact the licensure board for counselors, marriage and family therapist or psycho-educational specialist in the state in which the clients resides to determine whether or not such practices are permitted in that jurisdiction.”
In addition, the New Hampshire Board of Mental Health Practice, in response to queries posed to the Board concerning out-of-state practice via the internet, practice through the use of videoconference, and via other technologies, provided clarification in its “Statement of Interpretation of Statutory Authority: Out of State Practice.” The Board indicates “If you are located in another state and are providing mental health services to a consumer located in New Hampshire, you are considered to be practicing in New Hampshire and need to be licensed in this State. In either case, you might also be considered to be practicing in another jurisdiction.” Another example includes the Massachusetts State Board of Registration of Allied Mental Health and Human Services Professionals, which adopted “Policy Guidelines on Distance, Online, and other Electronic- Assisted Counseling,” indicating in particular, “ Board licensees who wish to provide services via electronic means to clients located outside of Massachusetts are urged to ensure that they meet the requirements for practice within the jurisdiction where the client is located.”
Currently, there are six states (Arizona, Colorado, Florida, New Jersey, Utah, and Wyoming), including D.C., that allow for out-of-state licensed MFTs to temporarily practice marriage and family therapy (and via telehealth) to clients located in those states. For example, Colorado’s State Board of Marriage and Family Therapist Examiners allow for an out-of-state LMFT to provide marriage and family therapy services to individuals in Colorado if the service is 1) performed within the scope of the person’s license or certification; 2) does not exceed twenty days per year in Colorado; 3) does not violate the licensing laws of Colorado; and 4) the provider discloses to the public that the provider is not licensed or certified in Colorado.13
Given states vary in their regulations and statutes, it is recommended for a therapist who is interested in providing telehealth services to a client located in another state, to contact the state’s MFT licensing board for an inquiry into the requirements for lawful practice of marriage and family therapy, or if the jurisdiction has relevant telehealth statutes, the practice of marriage and family therapy via telehealth in that state. In addition, see “ The Practice of Marriage and Family Therapy Across State Lines” on page 65 for a review of each state’s requirements (as of August, 2016) to provide marriage and family therapy services to individuals located in that state.
Resources on Telehealth
Ann Tran-Lien, JD, is a staff attorney and the Managing Director of Legal Affairs at CAMFT. Ann is available to answer member calls regarding legal, ethical, and licensure issues.
1 Cal Bus and Prof Code §2290.5(4)
2 16 C.C.R. §1815.5(b)
3 16 C.C.R. §1815.5(a)
4 16 C.C.R. §1815.5(c)(i)
5 16 C.C.R. §1815.5(c)(ii)
6 16 C.C.R. §1815.5(c)(iii)
7 16 C.C.R. §1815.5(c)(iv)
8 16 C.C.R. §1815.5(d)(i)
9 16 C.C.R. §1815.5(d)(ii)
10 16 C.C.R. §1815.5(d)(iii)
11 16 C.C.R. §1815.5(e)
12 “State Telehealth Laws and Medicaid Program Policies A Comprehensive Scan of the 50 States and District of Columbia.” Center for Connected Health Policy. N.p., Mar. 2016. Web. July 2016.
13 §12-43-215(9) C.R.S.
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.
"This article appeared in the September/October 2016 issue of The Therapist, the publication of the California Association of Marriage and Family Therapists (CAMFT). This article is copyrighted and has been reprinted with the permission of CAMFT. For more information regarding CAMFT, please log on to www.camft.org."