Telemedicine/Telehealth – Verbal Consent

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Avoiding Liability Bulletin – October 2011

… 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.


Richard Leslie

"At the Intersection of Law and Psychotherapy" Richard S. Leslie is an attorney who has practiced at the intersection of law and psychotherapy for the past twenty-five years. Most recently, he was a consultant to the American Association for Marriage and Family Therapy (AAMFT), where he worked with their various state divisions to develop and implement their legislative agendas. He also provided telephone consultation services to AAMFT members regarding legal and ethical issues confronting practitioners of diverse licensure nationwide. Additionally, he wrote articles regarding legal and ethical issues for their Family Therapy Magazine and presented at workshops on a variety of legal issues. Prior to his work with AAMFT, Richard was Legal Counsel to the California Association of Marriage and Family Therapists (CAMFT) for approximately twenty-two years. He was director of Government Relations for CAMFT, and as such was the architect of CAMFT’s widely regarded and successful legislative agenda. He represented CAMFT before the regulatory board (the Board of Behavioral Sciences) and was a tireless advocate for due process and fairness for licensees and applicants. He was a regular presenter at workshops and was consistently evaluated as CAMFT’s most highly rated presenter. He also sat with the CAMFT Ethics Committee and acted as their advisor on matters pertaining to the enforcement of ethical standards. Richard is an acknowledged expert on matters pertaining to the interrelationship between law and the practice of marriage and family therapy and psychotherapy. For many years, he taught Law and Ethics courses for a number of colleges and universities in their marriage and family therapy degree programs. While at CAMFT, he provided telephone consultation services with thousands of therapists in California and elsewhere for over twenty years. He is highly regarded for his judgment, his expertise, his direct style, and his clarity. Richard has been the driving force for many of the changes and additions to the laws of the State of California that affect MFTs. In 1980, he was primarily responsible for achieving passage of the "Freedom of Choice Law" that required insurance companies to pay for psychotherapy services performed by MFTs. Passage of that law allowed MFTs to earn a living, allowed them to better compete in the marketplace, and strengthened the profession in California by leading to a great increase in the number of licensees and CAMFT membership. Currently, about half of the licensed marriage and family therapists in the country are licensed in California. While at CAMFT, Richard was primarily responsible for, among other things, the successful effort to criminalize sex between a patient and a therapist. He was successful in extending the laws of psychotherapist-patient privilege to MFTs, thereby giving patients the same level of privacy protection as when seeing a psychiatrist or psychologist. He fought tirelessly and successfully for the right of MFTs to refer to themselves as "psychotherapists," to perform psychological testing services, to be appropriately reimbursed by California’s Victims of Crime Program, and to be employed in county mental health agencies throughout California. Richard was admitted to the Bar in New York (1969) and in California (1973). While practicing in New York, he served as a public defender, and later, as an Assistant District Attorney. Shortly after moving to California, he worked for the San Diego County Human Relations Commission as their Law and Justice Officer. While there, he worked successfully to achieve greater racial diversity in the criminal jury selection system and to expose and stop police abuse. For such work with that agency, he was the recipient of the Civil Libertarian of the Year Award by the San Diego Chapter of the American Civil Liberties Union.

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