Telehealth & Keeping Your License:
Things to Remember from the BBS

Today, during the COVID-19 public health emergency, the majority of licensed and registered mental health professionals in California have shifted to providing psychotherapy services using telehealth. Most are new to telemedicine and what’s required by the California Board of Behavioral Sciences (BBS). Questions abound . . .

What telehealth platforms can I use during the COVID-19 public health emergency? What communication technologies are still prohibited? What communication products or technologies can I use if I want a HIPAA compliant telehealth platform for my practice? What things am I required to do with each client when I begin telehealth services? What am I required to do with clients at the beginning of each telehealth session?

The answers to these questions and more are in the three following BBS telehealth documents presented here in full for easy use and reference—with links to the original documents.

Read them. Comply with them. Keep your license, and yourself, free from unprofessional conduct and disciplinary action.

1. BBS: Standards of Practice for Telehealth California Business and Professions Code

All persons engaging in the practice of marriage and family therapy, educational psychology, clinical social work, or professional clinical counseling via telehealth, as defined in Section 2290.5 of the Code, with a client who is physically located in this State must have a valid and current license or registration issued by the Board.

All psychotherapy services offered by board licensees and registrants via telehealth fall within the jurisdiction of the board just as traditional face-to-face services do. Therefore, all psychotherapy services offered via telehealth are subject to the board's statutes and regulations.

Upon initiation of telehealth services, a licensee or registrant shall do the following:

Each time a licensee or registrant provides services via telehealth, he or she shall do the following:

A licensee or registrant of this state may 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 services via telehealth is allowed by that jurisdiction.

Failure to comply with these provisions shall be considered unprofessional conduct.

2. BBS statement on HHS Telehealth Announcement of Enforcement Discretion

U.S. Department of Health and Human Services (HHS) Announcement
of Enforcement Discretion for Telehealth Remote Communications

The Office for Civil Rights at the U.S. Department of Health and Human Services (HHS) has announced that it will exercise its enforcement discretion and will waive potential penalties for HIPAA violations against health care providers that serve patients through everyday communication technologies during the COVID-19 public health emergency.

During this time, covered health care providers subject to HIPAA may provide telehealth services, in good faith, through remote communications technologies that may not fully comply with HIPAA requirements. This applies to telehealth provided for any reason, whether related to health conditions related to COVID-19 or not.

What Telehealth Platforms Can I Use?

HHS states that covered health care providers can use any non-public facing remote communication product that is available to communicate with patients. This includes popular applications that allow for video chats, such as the following:

Providers are encouraged to notify patients that these third-party applications potentially introduce privacy risks. Providers should enable all available encryption and privacy modes when using these applications.

What Platforms Are Still Prohibited?

HHS still prohibits using communication products that are public-facing. Therefore, do not use these types of platforms. Examples of public-facing communication products include, but are not limited to, the following:

I Still Want to Use a HIPAA Compliant Telehealth Platform For My Practice. What Are Some Examples Of These?

HHS provides some examples of products that are HIPAA compliant and will enter into HIPAA business associate agreements (BAAs) in connection with the provision of their video communication products. (They stress that they have not reviewed the BAAs for the below entities, and that this is not an endorsement, certification, or recommendation):

HHS Notes That HIPAA Applies Only to Covered Entitles and Business Associates. How do I Know If It Applies To Me?

HHS provides the following bulletin HIPAA Privacy and Novel Coronavirus. This topic, HIPAA Applies Only to Covered Entities and Business Associates, is covered toward the end of Page 5.

Where Can I Find More Information?

You can use the following links for more information from HHS:

3. Telehealth: BBS General Information & Requirements for Licensees & Registrants 

About Telehealth

Comprehensive Requirements and Applicable Laws

Detailed explanations regarding telehealth requirements, for licensees and registrants, are contained in the following statutes and regulations:

• California Code of Regulation Title 16 §1815.5: Standards of Practice for Telehealth
  
• Business and Professions Code §2290.5 
  

Clients in California

This section applies to clients who are physically located in California.

Clients Outside of California

This section applies to clients who are physically located out-of-state.

Inform and Consent

Prior to the delivery of health care via telehealth, the provider initiating the use of telehealth shall:

Confidentiality

• All laws regarding the confidentiality of health care information and a patient's right to their medical information shall apply to telehealth interactions.

Additional Info

Additional information regarding telehealth is contained in the following statutes and regulations:

Lynne Azpeitia, LMFT, AAMFT Approved Supervisor, is in private practice in Santa Monica where she works with Couples and Gifted, Talented, and Creative people across the lifespan. Lynne’s been doing business and clinical coaching with mental health professionals for more than 15 years, helping develop successful careers and thriving practices. To learn more about her services, training or the monthly LA Practice Development Lunch visit www.Gifted-Adults.com and www.LAPracticeDevelopment.com.