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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. BBS PRE-LICENSEE & LICENSEE RESOURCES & FAQ’S
IV. ADDITIONAL LEGAL AND ETHICAL ISSUES FOR THERAPISTS DURING COVID-19
V. BUILDING YOUR BACK-TO-BUSINESS PLAN
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I. GENERAL RESOURCES FOR COVID-19 INFORMATION
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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: Does CAMFT have any video recordings on Telehealth?
A: Yes, CAMFT has three 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: 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 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. 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 affinity partner for malpractice insurance, 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: What should I know about HIPAA laws in the provision of Telehealth during the COVID-19 emergency? Can I use Skype or Facetime?
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 pandemic, as of March 17, 2020, the Office for Civil Rights (OCR) which enforces HIPAA, issued a Notice, that 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 private video chats, including Facebook Messenger video chat, Skype, or Google Hangouts video to provide Telehealth without risk that the OCR will penalize the provider.
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.
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. 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: What do providers do if health care plans are not waiving certification requirements and refuse to reimburse?
A: The Department of Managed Health Care and the Department of Insurance have encouraged all health plans to expedite or relax their 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.
Q: Can I provide out-of=state Telehealth to my patients?
A: :It depends. Your California license only permits you to lawfully practice with those patients who are physically in California. As a result of the pandemic and based on a directive from Alex Azar with the U.S. Department of Health and Human Services (asking all governors to waive state licensing requirements to allow for more interstate healthcare assistance), some states have made modifications to their licensure requirements that may permit temporary practice outside of California. While CAMFT recommends against actively seeking new clients in other states, if you have a client who is temporarily in another state and is in crisis, you should:
Q. Can I continue lawfully seeing my California patients via telehealth if I travel outside of California?
A. Possibly. California cannot dictate to other states how to approach licensing in those jurisdictions. California law takes the position that psychotherapy services are rendered where the patient is physically located. For California licensing purposes, a therapist visiting California would not need to hold a California license if they are practicing with their out-of-state patients, but if the patient were visiting California, the treating therapist is required to comply to California's licensing requirements.
Other states may claim licensing jurisdiction over psychotherapy services by looking to where either the therapist or patient is located, rather than solely the patient. For example, if a California therapist travels to New Hampshire and continues to see their California patients, using their California license, and doing everything California requires of a therapist who is providing telehealth services to patients, New Hampshire requires that therapist to also hold a license issued by New Hampshire (N.H. Rev. Stat. Ann. Ch. 330-A).
If you are traveling out-of-state, CAMFT recommends you contact the state’s licensing board to determine whether you must additionally hold a license issued by that state to continue lawfully practicing with your California patients.
A. Statutory Waivers for Pre-Licensees
As California begins to emerge from the pandemic, CAMFT recognizes the uncertainty caused by not knowing whether these waivers will be extended or not. Our communications and legal teams will continue to provide members with information on the status of the BBS waivers as soon as we receive information from BBS.
B. Pre-Licensee Registration & Supervision FAQs
Q. I was enrolled in a practicum course this past Autumn. Can I continue to see patients and count hours?
A. Possibly. On November 25, 2020, the Department of Consumer Affairs issued a waiver to permit those “students last enrolled in a practicum course between September 1, 2020, and December 31, 2020” to counsel clients even if the student is not enrolled in a practicum course within 90 days. This waiver pertains to what CAMFT often refers to as the “First 90 Day Rule,” which requires a student to either be enrolled in a practicum course or have less than 90 days between the last practicum course and either the next practicum course or graduation for those hours to count. Under this waiver, a student who previously was enrolled in a practicum course now has a period of up to “180 days in order to counsel clients while not enrolled” in a practicum course. For example, if your last date of enrollment in a practicum course was December 15, 2020, instead of needing to be re-enrolled in a practicum course by March 31, 2021, you now may continue to work and count your hours so long as you either graduate or re-enroll in practicum by June 29, 2021. To find out more, review the BBS’ FAQ regarding this waiver.
Q. I need to apply for a subsequent registration number, but I have not yet passed the Law & Ethics exam. Can I still apply for a subsequent registration number?
A. Yes. On April 30, 2021, the Department of Consumer Affairs issued a waiver extension permitting the BBS to issue subsequent registration numbers to AMFTs who had not yet passed the California Law & Ethics exam. This waiver extension only applies to those AMFTs whose registration expired or will expire between March 21, 2020 and June 30, 2021. The associate must then pass the Law & Ethics exam within one year in order to renew their subsequent registration number. To find out more, please review the BBS’ FAQ regarding this waiver.
Q. If I cannot register to take the Law & Ethics exam to renew my registration number, does the waiver mean I no longer have to take the exam?
A. No. The temporary waiver gives Associates whose registration number expires between January 1, 2021 and July 31, 2021, a six-month extension to attempt the Law & Ethics exam as follows:
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 June 1, 2021 and July 31, 2021, you may renew your registration without having taken the Law & Ethics exam. You can renew your registration online via your BreEZe account.
Q. It is nearly one year since I became eligible to take the clinical exam and I have not yet had an opportunity to take the exam. What are my options?
A. On June 3, 2021, the Department of Consumer Affairs issued a waiver extension to permit AMFTs who were unable to either take or retake the clinical examination, and whose one-year eligibility to take or re-take the examination expired between March 31, 2020 and August 1, 2021 20-months from their date of eligibility to take the clinical exam. For Example, you became eligible to take the clinical exam on December 15, 2020. Typically, you would only have until December 15, 2020 to attempt the clinical exam before your application would be deemed abandoned. This waiver permits you 20 months instead of 12 months for your date of eligibility to attempt the clinical exam. In this example, the AMFT would now have until August 15, 2022 to attempt the exam. For more information please review the BBS FAQ.
Q: What about Pre-licensees who wish to provide Telehealth during this time?
A: 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 April 30, 2021, the Department of Consumer Affairs issued a waiver extension 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 April 30, 2021, the Department of Consumer Affairs issued a waiver extension 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 has been extended to now expire on June 30, 2021. For more information see the BBS FAQ regarding this waiver.
C. Liccensee Renewal FAQs
Q. What if my license expires between June 1, 2021, and July 31, 2021, 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 your license expiration:
IV. ADDITIONAL LEGAL AND ETHICAL ISSUES FOR THERAPISTS DURING COVID-19
If You or a Patient is Diagnosed with COVID-19
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 COVID-19, 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 COVID-19. 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 patient/staff has been diagnosed with COVID-19. What is my obligation to tell my staff and other patients?
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.
V. BUILDING YOUR BACK-TO-BUSINESS PLAN
As California slowly reopens, CAMFT continues to recommend 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. 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.
If you plan to see patients in your office, CAMFT recommends that you clearly communicate your expectations regarding your safety protocols. 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.
A. Federal, State and Local Safety Guidance
B. 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. If you decide to provide in person sessions, CAMFT recommends that you comply with all recommendations and requirements applicable to your practice as detailed above. You may want to have your patients sign an agreement addressing the possible risks associated with receiving in-person services at this time. CAMFT offers a sample form here.
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 continues to change daily. 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 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.
Q. Both my patients and I are fully vaccinated. Can we choose to not wear face masks while having in-person sessions Indoors?
A. Not at this time. California has adopted new guidance that would permit fully-vaccinated individuals to forego wearing face masks in some settings, but that guidance does not apply to healthcare settings. Regardless of vaccination status, face masks are currently required of all individuals in healthcare settings. California has adopted the Centers for Disease Control (CDC) defininition of healthcare settings, whjich is very broad. While the CDC definition of a healthcare setting, does not specifically include MFT private practices, it does indicate that a healthcare setting likely includes private practice settings.
The face covering guidance is effective June 15, 2021, through at least October 1, 2021. Because thef CDC definition of a healthcare setting may incorporate the majority of MFT practice settings, CAMFT recommends all therapists and patients, regardless of vaccination status, continue to wear face masks during in person sessions. Therapists should also continue to consult their local county public health department for specific guidance as it pertains to their work in a healthcare setting.
Q. I only want to offer in-person sessions to patients who have received the COVID-19 vaccine. Can I do this?
A. At this time, there is no concrete answer. To date, there is no specific legal guidance on whether asking a California patient about their vaccination status or having a vaccination-only policy could result in any liability under HIPAA or the Americans with Disabilities Act. Given the legal uncertainties and until further guidance on this issue is made available, CAMFT's current recommendation to therapists is to consider seeing clients via Telehealth if you are uncomfortable with providing in-person sessions to patients who may be unvaccinated. CAMFT will continue to update this recommendation as further guidance on this topic develops.
C. 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 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 LMFTs are just now reopening their in-person practices 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.
D. Employer Information
As noted above, CAMFT is interpreting the Governor's face covering requirement to mean that those therapists who work in healthcare settings as defined by the Center for Disease Control are required to wear face masks regardless of vaccination status through at least Oceober 1, 2021. Additional requirements exist for employers to minimize possible transmission of COVID-19 in workplace. Further changes to these workplace requirements are expected on or about June 17, 2021, when the Occupational Safety & Health Standards Board of California's Division of Occupation Safety and Health (Cal/OSHA) will meet to vote on proposed revisions..
Q. Which employers must comply with the Cal/OSHA COVID-19 Emergency Temporary Standards?
A. The Emergency Temporary Standards (ETS) apply to all employers, employees, and places of employment with three exceptions, only two of which are generally applicable to therapists: 1) workplaces where there is only one employee who does not have contact with other people (e.g., a therapist working from an office and seeing patients only via telehealth); and 2) employees who are working from home.
Q. What are some major components of the Cal/OSHA Emergency Temporary Standards?
A. Employers should review the Cal/OSHA Emergency Temporary Standards for further details on the many requirements they face when employees return to the office. Major components include, but are not limited to, a written COVID-19 Prevention Program; maximizing the amount of outside air to the extent feasible; and employee training covering such things as the importance of physical distancing and wearing face coverings and the importance of not coming to work and getting tested if an employee has COVID-19 symptoms.
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