… Whether or not required by state law or regulation, therapists who practice online therapy (e.g., intrastate) would be wise to make certain disclosures to the patient prior to the commencement of online therapy, and to obtain the patient’s written and informed consent prior to such treatment. Of course, if there is an applicable state law or regulation, therapists must follow the law or regulation in all of its detail. Since it can be reasonably argued that online psychotherapy can be considered new, innovative or experimental, it would be wise and prudent to obtain written informed consent, even in the absence of a state requirement.

 One of the disclosures that is often required or, at a minimum, advisable, is a description of the potential risks, consequences and benefits of online therapy. In one state, the telemedicine statute leaves it to the practitioner to determine what those risks, consequences and benefits actually are. Consequently, disclosures in that state and in other states will vary (where not specifically mandated) depending upon the technology used, the level of sophistication of the therapist and the patient/client, and the nature of the services being sought and rendered. Certainly a disclosure about how confidentiality will or may be affected by services being provided over the Internet, and what steps the therapist will take or has taken to make sure that the communications between patient and therapist remain confidential, would be important.

The patient should also be informed about how session records will be kept and how they may be retrieved or copied, to the extent that it differs from traditional record keeping practices. If therapy does not involve synchronous audio and video communication, but rather, written communication only, additional disclosures about the nature and process of the written communication should be considered. A therapist might also disclose the possible lack of certain clinical information about the patient because of the inability to see what might otherwise be seen in face-to-face therapy, and the possible consequences thereof.

ONLINE EDUCATION/ONLINE THERAPY

… It is interesting to me that online education has recently gained, and likely will continue to gain, increased acceptance nationwide. Not only are private educational institutions granting degrees earned online, but also, major “brick and mortar” universities are increasingly adding online components to the traditional methods of delivering education. This is of interest to me because it reminds me that in the late nineteen seventies and the nineteen eighties in California, a good number of educational institutions offering masters degrees that qualified for licensing of marriage and family therapists engaged in “distance learning” of one kind or another. These schools were routinely suspected or accused of providing inferior education and were often referred to as “degree mills.” These schools were largely non-accredited, but they were “state approved.”

Yet, my limited research at the time showed that such institutions compared favorably with most of the traditional WASC accredited schools and universities when I looked at the rate and frequency of ethics complaints and licensing board disciplinary actions. Additionally, pass rates on the examinations (written and oral) for licensure were seemingly unaffected by the kind of education received – that is, whether or not it was a correspondence school or another kind of distance learning school, or one with traditional classrooms. Perhaps it depended upon the particular institution, and the ethics and commitment of those involved with delivering education, rather than the manner in which the education was delivered. There were good and bad schools that were WASC accredited, and good and bad schools that were only state approved.

I think there are similarities with respect to providing counseling and therapy online, rather than in the traditional face-to-face manner, with that of the education experience described above. Of course, video cameras and online technology increasingly makes it possible to do therapy online while being face-to-face on the monitors/screens of providers and clients. Arguably, the quality of the therapy or counseling delivered depends more upon the knowledge and skills of the practitioner than upon the method in which the services are delivered. Further, as with the educational experience, the convenience of service delivery, the saved travel time, and the privacy of the experience all add up to –for some- a better experience.

State licensing boards must grapple with emerging questions concerning online masters degree level education, acceptable hours of experience gained online, online supervision, online continuing education, and other related questions. There is no question but that telemedicine is a growing and well-accepted trend in the delivery of healthcare for physical problems, including chronic conditions, and there is no reason why online counseling and psychotherapy should not be similarly utilized and accepted with respect to mental health care. I am aware, however, that there are legitimate questions and concerns that have arisen and that will arise, but feel comfortable that those questions and concerns can ultimately be answered and resolved.

… I have written about telemedicine before – when I have discussed online therapy, e-therapy, or therapy delivered via the Internet. California has had a telemedicine statute for quite a while, and now it is undergoing significant change. There are three proposed changes that caught my eye in Assembly Bill 415 (Logue). One change involves the title and definition of the Act and the description of the service being delivered or the mode of service being used. The Act was previously referred to as the “Telemedicine Development Act,” and now it is to be called the “Telehealth Advancement Act of 2011.” Another change involves informed consent. The bill removes the requirement of written and verbal informed consent. A third area of change involves prohibiting insurers and health plans from requiring in-person contact between a health care provider and a patient before payment is made for covered services appropriately provided through telehealth.

Much of the proposed changes to existing law are the result of the work of the Center for Connected Health Policy, a non-profit planning and strategy organization working to remove policy barriers that prevent the integration of telehealth technologies into the California Health System. The organization proposed a telehealth model statute and made other policy recommendations in a report issued in 2011. California’s Telemedicine Development Act (1996) was one of the first in the country and served as a model for other states. The amendments proposed in AB 415 are intended to remedy problems and barriers in the current system, to reduce costs, increase quality, and to increase access, especially in rural and other medically underserved areas where there is a shortage of primary care and specialty providers. Additionally, the Legislative intent is to promote the parity of telehealth with other health care delivery modes. The bill garnered broad bipartisan support and is now on the Governor’s desk. His signature is expected.

“Telehealth” means the mode of delivering health care services and public health via information and communication technologies to facilitate the diagnosis, consultation, treatment, education, care management, and self-management of a patient’s health care while the patient is at the originating site and the health care provider is at a distant site. Telehealth includes synchronous interactions, which is defined as a real time interaction between a patient and a health care provider located at a distant site. The Legislature, in enacting the bill, has found and declared that the consumer of health care will benefit from telehealth in many ways, including expanded access to providers, faster and more convenient treatment, better continuity of care, reduction of lost work time and travel costs, and the ability to remain with support networks.

Only the patient’s verbal consent to the use of telehealth will be required when the bill becomes effective on January 1, 2012 (assuming that the Governor signs this bill). Prior to the delivery of health care via telehealth, the health care provider at the “originating site” (where the patient is located) must verbally inform the patient that telehealth may be used and must obtain verbal consent from the patient for this use. As mentioned above, prior law required both verbal and written informed consent of the patient, and required, among other things, that the patient be informed of the potential risks of telemedicine. It was found that these requirements imposed unreasonable barriers to the use of telemedicine. The new law will require that the verbal consent to the use of telehealth be documented in the patient’s medical record. Amendments to existing law regarding insurers, health plans, and Medi-Cal (California’s Medicaid program) are made in the bill in order to remove some of the existing barriers to reimbursement.

The passage of this bill represents a strong endorsement of the use of telehealth. As was the case with California’s Telemedicine Development Act, other states will likely update their laws regarding telemedicine and telehealth as a result of the passage of AB 415.