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The following resources and FAQs are intended to offer members information and resources on relevant laws. This information does not serve as legal advice nor as a substitute for legal advice. Members who have additional questions may contact the CAMFT Legal Department.
I. GENERAL RESOURCES FOR COVID-19 INFORMATION
II. TELEHEALTH RESOURCES FOR THERAPISTS DURING THE COVID-19 PANDEMIC
III. EMPLOYMENT RESOURCES
IV. SMALL BUSINESS RESOURCES
V. BBS PRE-LICENSEE AND LICENSEE RESOURCES & FAQ’S
VI. ADDITIONAL LEGAL AND ETHICAL ISSUES FOR THERAPISTS
VII. BUILDING YOUR BACK-TO-BUSINESS PLAN
VIII. HOW CAMFT MEMBERS CAN HELP
Government officials and health care entities continue to announce emergency policies regarding the use of Telehealth during the COVID-19 crisis. Below are the most prominent considerations for therapists who want to utilize Telehealth platforms to safely continue client care. If you work in a hospital or clinic setting, be sure to follow your organization’s protocols for safety and readiness, including their protocols for Telehealth.
Q: Can I do interstate Telehealth with my patient right now?
A: While we of course recommend against actively seeking new clients in other states, if you have a client in another state that is in crisis, you can:
Q: As an LMFT, what are the California regulations that I should know regarding the provision of Telehealth?
A: In 2016, the BBS published regulations for the Standard of Practice for Telehealth. To read more about the regulations and what the BBS requires of LMFTs, LCSWs, and LPCCs in the provision of Telehealth services, read CAMFT’s article Regulatory and Legal Considerations for Telehealth. You can also view our Checklist for Telehealth.
Q: Do I need training to provide Telehealth?
A: California law does not require training to provide Telehealth services. As with all psychotherapy services, it is important that you are competent and knowledgeable about using technology in providing treatment. It is also important to recognize the risks and benefits of providing Telehealth services for your clients. The U.S. Department of Health and Human Services offers healthcare providers general resources on things to consider as you incorporate telehealth into your practice.
Q: Does CAMFT have any video recordings on Telehealth?
A: Yes, CAMFT has two recordings that members can access immediately! Members can view the educational content for FREE, and have the option to purchase the test for CEs:
Q: Do I need a written informed consent form to provide Telehealth services?
A: No. The law does not require written informed consent from clients to participate in Telehealth. Additionally, the Governor’s Executive Order, N-43-20, suspended the requirement that therapists providing Telehealth services must obtain either written or verbal consent for the use of telehealth from the client. Still, if you would like to use a Telehealth Informed Consent, CAMFT offers a sample form here.
Q: Will my malpractice carrier still cover me if I’m using Telehealth?
A: CAMFT has been in touch with our most prominent malpractice insurer, CPH. CPH has reassured us that they will cover the practitioners they insure even when they are utilizing Telehealth. We believe most insurers will provide coverage as well, but if your malpractice insurer is not CPH, CAMFT recommends that you check with your insurer to clarify.
Q: I don’t think Telehealth is appropriate for my patient. Can I still see my patient in person if I think it is medically necessary?
A: Governor Newsom’s recent Shelter in Place Executive Order does give exemptions for mental health providers as essential workers. It is up to each provider to determine if they need to continue to do in-person therapy or whether Telehealth is a better option.
Q: What should I know about HIPAA laws in the provision of Telehealth during the COVID-19 emergency? Can I use Skype or Facetime now since I have not had time to vet any Telehealth platforms?
A: HIPAA requires that “covered entities” (see next bullet point) follow the Security Rule, including obtaining a Business Associate Agreement (BAA) from the utilized Telehealth provider. However, given the COVID-19 outbreak, as of March 17, 2020, the Office for Civil Rights (OCR) who enforces HIPAA issued a Notice, that effective immediately, the OCR will not impose penalties against covered providers for the lack of a BAA or for any other noncompliance with the HIPAA rules that relate to provision of Telehealth services during this time. That means that a provider who needs to provide Telehealth services to their patients during this time may use platforms that would otherwise not be “HIPAA-compliant” such as Facetime or Skype. Providers may use other popular applications that allow for video chats, including Facebook Messenger video chat, Skype, or Google Hangouts video to provide Telehealth without risk that the OCR will penalize.
Important Notes:
Q: If I provide Telehealth services to my patients, will that make me a “covered entity” under HIPAA?
A: HIPAA only applies to organizations and providers who qualify as “covered entities” The mere use of electronic technology to provide Telehealth services does not transform a health care provider into a covered entity. Therapists who are not covered entities do not have to comply with HIPAA requirements.
“Covered entities” refers to health care providers who transmit protected health information (“PHI”) in connection with certain administrative or financial transactions (“covered transactions”) Examples of typical covered transactions by health care providers include the use of the Internet to electronically transmit insurance claims, conduct benefit eligibility inquiries, or to make referral authorization requests with insurance plans. To read more about covered entities, view CAMFT’s article Are You a Covered Entity.
Q: What are the HIPAA regulations pertaining to the provision of Telehealth that I should be familiar with if I want to learn more?
A: Although the restrictions regarding HIPAA compliance are being eased during the COVID-19 pandemic, many providers, even those who are not covered entities, may still want to follow industry best-practice and utilize HIPAA compliant Telehealth platforms. Please read the CAMFT article, Telehealth, HIPAA, and Compliant Telehealth Platforms, for more information about relevant HIPAA regulations.
Q: I want to use a HIPPA complaint Telehealth service provider. Is there a list?
A: There are several HIPAA compliant Telehealth companies out there. The OCR mentions these vendors in their Notice
Note: The OCR has not reviewed the BAAs offered by these vendors, and this list does not constitute an endorsement, certification, or recommendation of specific technology, software, applications, or products. Further, the OCR does not endorse any of the applications that allow for video chats listed above.
Here are some additional HIPAA compliant Telehealth vendors that are popular with psychotherapists:
Disclaimer: CAMFT has an affinity partnership with Simple Practice. CAMFT does not endorse or have a partnership with the other listed vendors.
Q: What CPT Codes do I use to bill for Telehealth services?
A: Some plans may vary. However, most plans are using the CPT code modifier for “synchronous telemedicine” via videoconferencing, which is currently 95 or GT depending on the plan. Synchronous telemedicine refers to services which are rendered via real-time interactive audio and video. As an example, the CPT code for telemedicine, 45 minutes, is 90834 with modifier 95 (or 90834 with modifier GT).
Effective January 1, 2017, the place of service (POS) code for Telehealth is 02. (Previously, POS code 11 was used for Telehealth). POS code 02 refers to the location where health services are provided or received through telecommunications technology.
Q: Have any regulatory agencies taken action to help ensure insurance plans will reimburse for Telehealth services?
A: Yes, several agencies have announced plans and mandates to help secure Telehealth reimbursements. Here are the most recent developments:
Q: Still, what do providers do if health care plans are not waiving certification requirements and refuse to reimburse?
A: The federal government, as well as Governor Newsom, have encouraged Telehealth and social distancing. The Department of Managed Health Care and the Department of Insurance have encouraged all health plans to expedite or relax their pre-certification requirements. CAMFT and other mental health stakeholders have reached out to the Governor, the DMHC, the Department of Insurance, and the California Association of Health Plans to enforce a 60-day freeze requiring all plans to reimburse Telehealth with no pre-certification requirements.
If a provider is in the situation where it is unsafe to provide in-person therapy, they should act in the spirit of the law, fully document their decision-making on why they utilized Telehealth with their clients prior to obtaining pre-certification, and request full reimbursement. There is a risk that if the contract with the health plan does not include Telehealth, you might not be paid. If that occurs, CAMFT recommends that the appropriate appeal steps be taken with the Department of Managed Health Care or the Department of Insurance.
Information For Employees
On Friday, March 27th, 2020, the Coronavirus Aid, Relief, and Economic Security (CARES) Act was signed into law. Among other forms of economic relief supplied by the law, the CARES Act allocates billions of dollars of funding to two loan programs operated by the U.S. Small Business Administration (SBA):
These programs make loans available to small businesses, nonprofit organizations, sole proprietors, independent contractors, and other entities affected by the coronavirus.
Q: What is the Economic Injury Disaster Loan (EIDL) Program?
A: The EIDL program allows certain entities and individuals that are economically impacted by disasters, such as the coronavirus, to receive loans from the SBA. These entities and individuals include, but are not limited to:
For more information about the EIDL Program: Click Here
Q: How Do I Apply for an EIDL Program Loan?
A: To apply for an EIDL program loan: Click Here
If you have questions about the application process or other issues related to the EIDL program, contact the SBA Disaster Assistance Customer Service Center via phone at 1-800-659-2955 (TTY: 1-800-877-8339) or via email at DisasterCustomerService@sba.gov.
Q: What is the Paycheck Protection Program?
A: The Paycheck Protection Program is designed to provide employers with an incentive to keep their workers on payroll during the coronavirus crisis. The program allows eligible employers to receive federally-backed loans through local lenders. The SBA will forgive an employer’s Paycheck Protection Program loan if the employer:
The Paycheck Protection Program will be available through June 30, 2020.
Q: Which Entities and Individuals Are Eligible to Receive Paycheck Protection Program Loans?
A: Entities and individuals eligible to receive loans through the Paycheck Protection Program include, but are not limited to:
For more information about the Paycheck Protection Program: Click Here
Q: How Can I Apply for a Paycheck Protection Program Loan?
A: Eligible employers can apply for Paycheck Protection Program loans through:
Eligible employers should reach out to their local lenders to determine whether the lenders are participating in the Paycheck Protection Program.
V. BBS PRE-LICENSEE & LICENSEE RESOURCES & FAQ’S
View the main page for Board of Behavioral Sciences COVID 19 information here, including license/registration renewal information.
For license/registration renewals and retired/inactive license activation, the Department of Consumer Affairs (DCA) has issued two waivers:
Q. If I cannot register to take the Law & Ethics exam, does the waiver mean I no longer have to take the exam?
A. No. The temporary waiver gives Associates whose registration number expires between March 31, 2020 and June 30, 2020, six months from March 31, 2020 to take the Law & Ethics exam. For additional information on whether exam rescheduling is available log into your Pearson VUE account.
Q. What if my registration number is delinquent because I was unable to take the Law & Ethics exam before it expired. Can I renew my registration?
A. Yes. If your registration expires between March 31, 2020 and June 30, 2020, you may renew your registration without having taken the Law & Ethics exam. You can renew your registration online via your BreEZe account.
Q. What if my registration is expiring soon and I need to take the clinical exam. Does the waiver apply to me?
A. No. Taking the clinical exam is not a condition to renewal of your registration. Whether you need to maintain a current and active registration number depends on the type of setting you are working in. If you are in private practice you are required to maintain a current Associate registration until your license is issued.
Q. What if my registration is expiring soon and I am required to complete continuing education or training as a result of a disciplinary order?
A. The temporary waivers issued by the Department of Consumer Affairs do not apply to any requirements in a disciplinary order taken against a licensee. If you are required to complete any continuing education, training, or examinations as a term or condition of your probation those requirements remain in effect. For further guidance please contact your attorney or the BBS.
Q: What about Pre-licensees who wish to provide Telehealth during this time?
A: Trainees, Registered Associates and supervisors should follow California law as outlined in the BBS’s Statement on Coronavirus Disease 2019 (COVID-19) and Telehealth. Trainees are permitted to provide telehealth services if permitted in the agreement between their school and their workplace and telehealth services are performed under supervision of their supervisor(s). Additionally, on May 6, 2020, the Department of Consumer Affairs issued a waiver clarifying that student trainees are not required to provide “face-to-face” mental health services in order to complete their required training. Further, all Registered Associates are permitted to perform services via telehealth with clients located in California under the supervision of their supervisor(s). For more information see the BBS FAQ regarding this waiver.
Q. Videoconferencing Supervision: Are Registered Associates working in Non-Exempt settings able to receive videoconferencing supervision?
A. Yes. On May 6, 2020, the Department of Consumer Affairs issued a waiver permitting all Registered Associates, regardless of the setting in which they are working, to obtain supervision via two-way, real-time videoconferencing. This waiver does not permit telephonic supervision of any pre-licensee under any circumstances. The waiver terminates 60 days from May 6, 2020, unless extended. For more information see the BBS FAQ regarding this waiver.
Q. If I am counting my hours under Option 2, can I count telehealth sessions as “in-person” sessions rather than “telehealth counseling”?
A. No. If you are counting your hours under Option 2, the 375-hour maximum for “telehealth counseling” remains in effect. If you intend to submit your hours by December 31, 2020, you have the option of submitting your hours under either Option 1 or Option 2. If you are providing telehealth sessions due to recommendations and orders issued in response to the COVID-19 pandemic, we recommend that you track your hours under both Option 1 and Option 2 to minimize any potential loss of hours and see which option works better for your situation. This particular issue has not been prioritized as a necessary law change at this time, but you can attend a virtual BBS meeting to explain to the BBS why it is necessary to remove this cap. CAMFT will follow-up with the BBS on this issue once their efforts in response to the COVID-19 pandemic shift away from maintaining the pipeline of available therapists to maximize advocacy efforts and focus.
Q. What if my license expires between March 31, 2020, and June 30, 2020, and I am unable to finish my required continuing education units?
A. All continuing education units may be obtained online. In person coursework is not required. CAMFT offers on-demand continuing education. A list of CAMFT approved CE Providers is also available on our website. If you are unable to complete your required CEU’s online by the time you renew your license you must complete any outstanding continuing education units within six months of March 31, 2020.
Q. What if I am required to complete continuing education or training as a result of a disciplinary order?
Q. What if I recently retired my license and want to reinstate it, can I?
A. Yes. If you have placed your license in an inactive, retired, or canceled status in the last five years you are permitted to reactivate or restore your license. You will not have to complete the any continuing education requirements that would otherwise apply. If you do choose to reactivate your license under this waiver it will be valid for either a maximum of six months or the date the State of Emergency ceases to exist, whichever occurs sooner. This waiver does not permit the reinstatement of a license that was surrendered, revoked, or cancelled pursuant to a disciplinary action.
VI. ADDITIONAL LEGAL AND ETHICAL ISSUES FOR THERAPISTS DURING COVID-19
We encourage therapists to adopt sensitive, clinically appropriate approaches to situations where patients who are sick are being asked to stay home or to engage in services via Telehealth. Therapists should also be careful not to engage in racial profiling or nationality-based discrimination in these situations. And remember, psychotherapists are required to keep patient communications and clinical records confidential and may only release information according to a patient’s valid authorization or as required or permitted by law.
Q: Can I terminate with my patients or postpone my services during this time?
A: It is important to be mindful of your ethical duties to patients even during this time of nationwide emergency. We urge that you use sound clinical judgment when terminating services with a patient. It is encouraged that you offer referrals to the patient. Please refer to the relevant CAMFT Code of Ethics below:
Q: I’ve received a court order signed by a judge or a search warrant issued by a judge requesting confidential patient information. Do I have to release?
A: Court Order—You must disclose patient confidential information as requested by a court pursuant to an order of that court. The court order must be signed by a judge. (Civil Code §56.10(b)(1).)
Search Warrant—You must disclose patient confidential information as requested by a search warrant lawfully issued to a governmental law enforcement agency. (Civil Code §56.10(b)(6).)
Q: My patient passed away and I just received a request for patient information from the coroner’s office. Do I have to release?
A: You must disclose confidential information of a deceased patient as requested by a medical examiner, forensic pathologist, or coroner, when requested in the following:
In the course of an investigation by such persons for the purpose of identifying the deceased patient or locating next of kin;
When investigating the patient’s death that may involve public health concerns, organ or tissue donation, child abuse, elder abuse, suicides, poisonings, accidents, sudden infant deaths, suspicious deaths, unknown deaths, or criminal deaths;
Upon notification of, or investigation of, imminent deaths that may involve organ or tissue donation. (Civil Code §56.10(b)(8).)
Q: A medical professional at a hospital treating my patient is requesting confidential patient information. Must I disclose?
A: Diagnosis and Treatment—You may (but are not required to) disclose patient confidential information to providers of health care and health care facilities for limited purposes of diagnosis or treatment of the patient. (Civil Code §56.10(c)(1).) We recommend, if practicable, that you obtain the patient’s authorization prior to disclosing confidential information. When disclosing information, therapists should make reasonable efforts to limit the information disclosed to that which is the “minimum necessary” to accomplish the purpose.
Q: The local county health department has requested my patient’s information. Do I have to release?
A: Prevention or Controlling Disease—You may (but are not required to, unless there is a court order or search warrant) disclose confidential information to a local health department for the purpose of preventing or controlling disease, injury, or disability and for the purpose of public health surveillance, interventions, or investigations. (Civil Code §56.10(c)(18).) As discussed above, we recommend to obtain the patient’s authorization prior to disclosing patient information. When disclosing information, therapists should make reasonable efforts to limit the information disclosed to that which is the “minimum necessary” to accomplish the purpose.
Q: The Red Cross is asking for my patient’s information. Do I have to release?
A: Disclosures for Disaster Relief Efforts—You may (but are not required to) disclose patient confidential information to a public or private entity to assist in disaster relief efforts, for the purpose of coordinating the notification to family members (or those involved in the patient’s care) of the patient’s location, general condition, or death. (Civil Code §56.1007(e).) As discussed above, we recommend if practicable, to obtain the patient’s authorization prior to disclosing confidential information. When disclosing information, therapists should make reasonable efforts to limit the information disclosed to that which is the “minimum necessary” to accomplish the purpose.
Q: I am concerned about a patient who is ill and reports exposure to Coronavirus, can I refuse to see the patient?
A: If you work in a hospital, clinic, or other setting, be sure to follow your employer’s protocols for safety and readiness. If a patient reports that they are ill or may have been exposed to any communicable illness, including but not limited to Coronavirus, you may request the patient not come in for session until they are feeling well (or after consultation with a healthcare provider which can give you reasonable assurances that they are not contagious). If practicable and suitable for the patient, you may consider offering Telehealth sessions.
Q. I have been notified that I have been diagnosed with coronavirus. What is my obligation to tell my staff or clients?
A. For patients, we highly recommend you notify any patients (that you have physically interacted with over the last 14 days) that there has been a diagnosis of an individual that they have come into contact with at your office. For staff, we recommend you tell them immediately and follow CDC recommendations on isolation and testing. Liability in these cases has not yet been fully tested, but knowingly exposing your patients or staff to a virus and/or not alerting them to that fact could be very problematic.
Q. I have been notified that my client/staff has been diagnosed with coronavirus. What is my obligation to tell my staff and other clients?
A: If you work in a hospital, clinic, or other setting, be sure to follow your employer’s protocols for safety and readiness. If a patient/staff reports that they have been exposed to any communicable illness, including but not limited to Coronavirus, and have been in your office within the last 14 days, it would be prudent to let any staff or patients who have also been physically in your office during that same time period that an individual who has been in your office has tested positive. You do not need to give additional personal information. If practicable and suitable for your patients, you may consider offering Telehealth sessions and/or remote work to your staff.
CAMFT encourages members to ensure the transition back to providing in-person sessions is done in a thoughtful and conscientious manner. As discussed above, CAMFT has interpreted Governor Newsom’s Shelter in Place Executive Order to mean that therapists are essential workers. This means that therapists can see patients in-person. While therapists can practice with patients in-person it is important to first consider whether you should. The decision of whether and when to resume in-person sessions will be unique to each therapist.
At this time, CAMFT recommends therapists exercise their best professional judgment in considering whether they should offer in-person psychotherapy. Therapists should be familiar with and apply relevant guidance from the federal, state, and local levels of government. This guidance, including guidance regarding potential liability issues, can be found in the links below. As a therapist, it is always important to consider the potential risks to self, patients, and family members in deciding whether to provide in-person sessions. Additionally, you should consult with your physician regarding any medical concerns you may have before resuming in-person sessions.
If you plan to see patients in your office, CAMFT recommends that you clearly communicate your expectations regarding your safety protocols. You may want to create written guidelines for your clients about whether or not they will be expected to wear masks, use hand sanitizer or disinfectant wipes, maintain a certain distance within the room, etc. If you have patients who do not wish to comply with the safety standards you have outlined, you can ask those clients to continue with Telehealth services or, as is the case with non-compliant patients in any context, you can offer referrals for them to see another provider.
Counties across California have implemented their own public health orders. These orders have included guidance of face covering requirements, criteria that should be met for those individuals considering returning to work after suspected or confirmed COVID--19, or social distancing protocols that are required to be posted in open businesses. Before providing in-person sessions, therapists should be familiar with their county's applicable public health orders and recommendations.
B. Liability Considerations
Therapists can minimize the potential for liability related to COVID-19 by educating themselves on the recommendations and orders that pertain to their specific practice. The easiest way to open the door for potential liability related to COVID-19 is by violating public health orders/recommendations. Additionally, if therapists advertise that they have taken certain precautions in following the public health orders/recommendations they should ensure compliance with those advertised precautions.
If a claim is filed against you related to COVID-19 exposure (e.g., from either a patient or employee), the circumstances and allegations surrounding the claim will be examined by your insurance carrier. In determining whether or not to cover the claim, your insurance provider will review the facts and circumstances surrounding the claim as well as the terms and conditions of your policy. Given that most LMFTs are still practicing via Telehealth and claims have not yet begun to be filed against therapists, CAMFT has been told that carriers are still assessing how COVID-19 fits into general and malpractice policies. We will keep you updated once we receive further clarity on how COVID-19 may impact your liability.
C. Concerns and Sample Agreements for Seeing Patients In-Person
Q. My client is requesting to be seen in person. If I agree to see this patient in person, what are some specific considerations I can relay to the patient if they come into my office?
A. At this time CAMFT recommends seeing patients via Telehealth unless the patient is not clinically-appropriate for Telehealth services. If a therapist provides in person sessions, that therapist should comply with all recommendations and requirements applicable to their practice as detailed above to minimize the chance of exposure to COVID-19. If a therapist agrees to see a patient in person, CAMFT recommends you consider whether you may want to have your patient sign an agreement addressing some of the following issues.
Q. If I am seeing patients in person, what are some tips to protect the health of therapists and their patients?
A. Our understanding of COVID-19 changes daily. As a result, what might be recommended today to mitigate transferability of the virus might not be recommended next week. For this reason, CAMFT is not offering specific tips as we do not want to inadvertently subject our members to liability for following out-of-date guidance. When considering what steps a therapist should take to protect the health and safety of themselves, their patients, and employees, CAMFT recommends therapists look to the specific guidance that is put out by the Centers for Disease Control and follow any and all health orders in place in your city or county that pertain to your practice. For example, at this time, the Centers for Disease Control (CDC) recommendations include, but are not limited to:
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Resources to Provide Mental Health Services
CAMFT continues to be inspired by our many members who have called in and asked, “How can I help? Below you will find local and statewide initiatives that are calling for mental health professionals to support front-line healthcare workers and first responders as well as the public at large during the COVID-19 crisis.
(Please note: CAMFT is not directly affiliated with any of these initiatives and is not responsible for their actions or CAMFT member interactions with these organizations.)
THROUGHOUT CALIFORNIA—THE CALIFORNIA HEALTH CORPS
THROUGHOUT CALIFORNIA—THE COVID-19 COUNSELING CALIFORNIA INITIATIVE
THROUGHOUT CALIFORNIA—CA DISASTER HEALTHCARE VOLUNTEERS PROGRAM
THROUGHOUT CALIFORNIA—GIVE AN HOUR
BAY AREA ONLY—THE COVID-19 PRO BONO COUNSELING PROJECT