Welcome to the Online Counselling Podcast. Exploring the practice of counseling through technology. Here’s your host, Clay Cockrell.
Clay Cockrell: Hello and welcome to the Online Counselling Podcast. My name is Clay Cockrell and I’m very glad to have you join us. If you are a first time listener, an especially warm welcome. This is the podcast where we as healthcare providers learn about the changing field of telemental health, how to ethically and legally do online counseling. The idea is we learn together by talking with some of the leaders in the field who are doing online therapy or people who are adding to the knowledge base of this growing field. It’s been awhile since we’ve been able to do a new podcast. My apologies for the gap. As a therapist myself, my practice has been quite full and of course many of my clients are dealing with the fallout from the recent presidential election. There’s a lot of anxiety and fear and uncertainty. Just not a lot of time to do a podcast.
But today, I’m going to make up for it with an amazing interview. I predict this will be the most listened to podcast in our history. Oh, and while we were on hiatus, I guess you would say, we passed a huge milestone. We have now had over ten thousand downloads of this podcast. Actually, I think we’ve maybe been coming up on 11,000 which is just crazy to me and really cool. Thank you to everyone for all of your support and kind words of encouragement. When I started this, less than year ago, really, I could not imagine seeing those numbers. So, wow! Thank you. I think it just goes to show there a lot of people in our industry who are hungry for knowledge and information on this topic. Hopefully we are filling the gap.
So, back to today. Because this podcast is definitely going to be filling the gap. You may remember that I set a goal for myself and the podcast to find out the regulations for online counseling in each US state. So, tiny bit of information for our international clients listeners. Here in the United States, each state has its own laws and regulations for doing online counseling. Somebody licensed in Florida can’t do telemental health sessions with the client living in Texas. They would have to be licensed in Texas. So you could imagine that gets complicated. One of the ways we have dealt with that on the Online Therapy Directory is to ask each client who are searching for a therapist what state they lived in. And then only show results of therapist who are legally able to work with them. I said I’m going to go to each state and find out what the regulations are because some states have no regulations. Our guy and the example in Florida could do counseling with someone in say Pennsylvania if they have no regulation against it. There’s no one place to find out what all the laws say. No big resource and a lot of questions. I started down the road of doing this and very quickly realized that it would take a team of people working full time for months to do this. There’s just no way one person could do it.
Then I got an email from a friend of mine, Dianne Brennon, who I met at the most awesome conference, who forwarded me something she saw on one of the therapist support groups, which, may have been Melvin selling the couch, I’m not sure. I get this email and she said, “This looks like something up your alley. It’s a complete list of all the regulations in the United States.” I thought yeah I’ve seen that before. It’s something the APA did years ago. It’s already out of date etcetera. But I opened it and wow! It really is a complete listing of each state’s regulations for online counselling covering psychiatrist counsellors, psychologists, marriage and family therapists, social workers, nurse practitioners. It’s a massive 600+ page document that is gold. Gold. Everything you could possibly want to know about online counseling is reviewed in this document. It was done by a law firm in DC, Epstein, Becker and Green. They have a niche where they work in telemedicine and had so many of their clients asking questions. They just put a team together and did the research. What do I do? I call up Epstein, Becker and Green. That’s a great thing about doing a podcast because if we confidence. Just call people up. I mean, why not? And they completely agreed to talk with me. In fact, I got one of the authors of the project, Amy Lerman, to agree to talk with me and today is that interview. Fasten your seatbelts. We get into the nitty gritty of it. I think just about anyone’s questions are going to be answered. But again, this is a massive document. I’m going to have it listed in the therapist tool box section of onlinecounselling.com. You could also get it from Epstein, Becker and Green. The link is going to be on the show notes. This is something you all should look into. It’s amazing.
Before we get started, quick update on the directory. As most of you know, this podcast is an arm of the Online Therapy Directory which is a listing service of profiles of certified and licensed therapists who are working online. Very similar to the concept of Psychology Today’s directory but for therapists working online. Update is that we are growing. We now have therapists covering most states. Including North Dakota and Oklahoma, which we were having hard time finding folks in those states. I think there maybe one or two we still need. But most states have now at least one person in the directory covering them. A lot of states have similar therapists listed. But we are also now going international. I have counselors listed in Australia, Canada, UK, Ireland, and Northern Ireland. In fact I’m getting ready to do an interview with one of the leading group practices in Irelands. So stay tuned for that. But we are growing. If you haven’t signed up yet for the directory, please head on over to onlinecounselling.com. Click on List Your Practice. Our goal is to bring new clients to you. But we can’t do that if you aren’t listed. End of the little commercial. Here we go with amazing interview.
Clay: Hello and welcome to the Online Counselling Podcast. I’m Clay Cockrell. I’m extremely excited to welcome Amy Lerman of Epstein, Becker and Green to the show. Amy, thank you so much for coming on the online counselling podcast.
Amy Lerman: It’s my pleasure. Thank you for having me.
Clay: Absolutely. So you’re bringing us great information from DC. We’re going to talk today about Epstein, Becker and Green but also on this fifty state survey that you did for telemental health. So, let’s start out with you. Who are you and who is Epstein, Becker and Green?
Amy: Alright. I am an attorney. Practicing for almost a decade here Washington DC area. I came to the practice of law wanting to be solely a healthcare lawyer. I had a background prior to going to law school in healthcare industry and went to law school sort of almost as a second career start and develop an expertise in the background in health law working in Epstein, Becker and Green where I’ve been again for almost a decade. EBG is a firm that was founded in 1973. We have nearly 45 years and we are a boutique national law firm. We have offices in I think 13 cities nationwide. Our practice areas are healthcare and also labor employment. We have equally large and skilled groups of attorneys who cover work for our clients and both on those areas. I think that our healthcare practice in particular because that’s where I am a member. We are extremely diverse in our backgrounds where we’ve come to EBG from. Some of us have come from industry and other people have come from clinical practice. Some people come from government. I think we really cover the basis well. I think what we are offer to our client is a very deep skill set of expertise not only skilled as lawyers but as healthcare lawyers, which I think is so important in this day and age as the business of healthcare and the regulatory landscape of healthcare continues to evolve at such a rapid phase. Especially in areas like telehealth. I’m happy that we can offer terrible false swap of services to our clients., I am confident to say we know healthcare.
Clay: That’s wonderful. As you can imagine, most of the listeners are counselors, social workers, psychiatrists. What kind of services would you be providing for that demographic?
Amy: We certainly in this area, I have the benefit of talking to a lot of not just a very larger providers but also a lot of individual providers who are looking perhaps from an entrepreneurial stand point to take their business whether it’s counseling or some other form of care and turn it into more of a business so to speak. I think let’s just use telehealth as example since that’s what we’re here to talk about today. We get from our clients any number of questions about how to develop a business in this area. They’ve got the clinical stuff down as they like to tell me. They’ve got a great idea, and then as I jokingly will say to people sometimes I can be the buzz kill. I’m the one who can help them figure out where the regulatory hurdles maybe and then how we can figure out a way to make them insurmountable so that they can remain compliant. This is an industry where there are a lot of laws that sort of govern the way that people practice healthcare in its various forms. But also to make sure that it is not so burdensome or onerous such that it kind of kills the business idea to begin with and I guess the provider prevents them from interacting with their clients and their patients in a way that is comfortable for them. It’s helping them find that balance whether it’s questions around licensure, or privacy and security, reimbursement. These are all areas where, especially for telehealth providers, they think that there’s a in some cases a lot of information out there, and other cases lack of information. We’re hopefully helping to educate and bridge the gap and to help them figure out where the ambiguities are and if there’s a way to make them clear to help them, like I said, inform themselves as they venture off to counsel patients which is what they’re trained to do.
Clay: Absolutely.
Amy: They should do their job. I can help them do in a compliant way.
Clay: Wonderful. Because I remember my uncle saying that if you’re going to start in business, you need to get a good lawyer and to get set up. Because you’re there to help us. Epstein, Becker and Green is someone that—if one of our listeners is thinking of going into this and wants to set up and have their questions answered—you’re just a phone call away, right?
Amy: Absolutely. Definitely.
Clay: How did you come to the idea we need to do a survey of all 50 states? What an amazing yet huge project! Tell me how did that come about and say we need to do this and then how did the actual thing happened?
Amy: It was, like I said, we got a lot of these questions from clients certainly. There are too many who say, “I must know everything about all 50 states.” But when you look at telehealth, just generally, telemental health, aside for a moment, it is still very much an area where states on a lot of these issues are really the chief regulators. You’ve got a number of key federal laws that are going to govern the practice of telehealth. For example, HIPAA, for privacy and security stand point. HIPAA still matters. HIPAA always is going to a pry when you’re thinking about the privacy and security of the data that’s being transmitted in the telehealth encounter. We can’t forget about HIPAA. But, there are lots of state counterparts to HIPAA. It could be what, the HIPAA may say something and then the state of Pennsylvania may say something not necessarily different but they may enhance it in a certain way. It may require that a provider looking to practice in the state of Pennsylvania has to be mindful of the nuances or the differences or something additional they may have to do in order be compliant not just overall but also in the state of Pennsylvania by way of example.
We started thinking about the fact that, behavioral health is certainly within the broad spectrum of types of healthcare services. It is certainly a type of care. They’re very diverse. There are a number of types of providers who provide “behavioral health services.” It is also a type of care base on how behavioral health encounters take place at a high level they are conversations for people. Telehealth to us felt like a good modality through which providers might be looking to provide these services to patients. You can provide them to patients who are in remote areas, who may be travelling, who may live in rural areas where access to providers isn’t as bountiful. We started thinking a lot about behavioral health and telehealth and thinking about sort of what are the questions and how are they potentially different from the ones we were thinking about for a lot of our other types of telehealth plans. They’re not really that different.
But when we started thinking about questions that even some specific clients have started asking us in the space we said, “Wow! There is nothing out there that has compiled information in sort of a meaningful way.” There are a number of tremendously helpful resources that are available just generally about telehealth and I think that providers hopefully as a starting point should avail ourselves of these resources to help as educational tools. But what behavioral providers do is very unique from a licensing stand point. Everyone has different sets of roles whether you’re a psychiatrist or a psychologist or a counselor or a social worker. I mean there are licensing and regulatory bodies that separately regulate all of those different types of providers. We felt like it needed a sort of a different level of treatment. Because we haven’t’ seen anything out there, because we have clients starting to ask some of these very specific questions and we kind of started at general point, we tested out a few states and we went from there and developed the resource. Thinking it would be…
Clay: I remember going to my wife when we’re developing this project and said, “I’m going to go all 50 states and I’m going to figure out…” and she just looked at me and said, “When are you going to have time to do that?” That’s a massive project. So I started with one state and it took me a month to get all the information for the psychologists, the social workers, the counselors, the psychiatrists, the state board had different things and then of course the national professional organizations had different. So, how many people did you have working on this? Who did you call? And how long did it take?
Amy: We had a team of attorneys who, thankfully, I cannot take solo credit for this. We had a great team here. We do state research and a lot of different capacities. We know once we’re able to educate our team on sort of visible we’re looking at and sort of here are the parameters. The first state is always the hardest. I’m sure from your experience you’ve had recognized. But people get comfortable thinking in a given state, we’re going to need to look at sort of you know the boards of X, Y and Z. We’re going to need to look at the professional organizations. We did a little bit of that research, generally. We said, “Is there some sort of national association of social workers? And if so, do they have a position statement on that?” We were really trying to make sure we read it on. But then again ultimately, each state regulates what these rules are if they regulate them at all. Some of the states haven’t really done much yet in these areas. Ultimately you have to do the state by state looks. We just systematically broke down the map into quadrants and we had people worked on it. Of course, the minute it was put together of course it has to be updated especially in the area of telehealth because there are so many changes. There is so much evolution going on the laboratory friends. Fortunately, we do a lot of a work for clients. We can keep, you know kind of on top of some of the regulatory stuff. But it also is something that it’s a living breathing document and needs to be managed over time.
Clay: So would you plan to do that?
Amy: We do plan to do that. We’ve been fortunate to sort of keep track of some of the stuff that’s been going on. The legislative process from state to state can take various amount of time. So there’s a lot that’s been proposed but it hasn’t been finalized. States are definitely looking at these different areas. The goal is to trying to do periodic updates to the survey.
Clay: One of the first podcasts I did was with an attorney who was also counselor, Eric Strom. He took this on as a project. It took him a year and he only looked at counselors. He said by the end of the year, it was an obsolete document because states are always updating. So, I’m glad to know that you’re going to continue to update your document.
Amy: I think we have to. It’s a great thing that the states are taking these issues seriously. That they’re listening to professional organizations and other bodies that are saying this is the way care can be provided. It can solve issues related to access and provider shortages. It’s almost like… I don’t want to volunteer as per updating and then definitely. But we’re happy to do it in a sense because it makes as happy to know that states are actually taking these issues seriously and looking to do regulatory updates. Sometimes a little quicker than others. But there’s progress.
Clay: Before we jump in to the states and of course we’re not going to go state by state. We’ll be here for hours. But what fascinated me was that you have a wonderful introduction to the document talking about mental healthcare in United States, a wonderful statistics. Let’s go through some of those because some of them I had heard, some of them were shocking to me. One of that I heard a lot is that one in four or one in five people in the United States will have some need for mental healthcare in their life time. But there’s one mental health provider for every 790 people. Now that’s an average, right?
Amy: I think so, yes.
Clay: It’s different from state to state. I don’t have it in front of me but I think it’s like one in 2000 for Texas and getting perhaps, Maine is one in 300. So average is out to one, that’s a massive need, there’s one mental health provider for every 790 citizens in the United States.
Amy: Those are crazy statistics when you would think about them. There are so many people clamoring to become healthcare providers. Just the med school trend alone. We were talking about this the other day. Why are med schools so hard to get into? We’re having a position shortage. But I know those aren’t new facts to people. It is crazy to me that there’s such a shortage. But in fact that’s what this statistic suggests that there’s a shortage of providers, a shortage of behavioral health providers, a shortage of specialty providers. Just kind of keeps going from there. You have such a diverse population of patients who would be seeking these types of services. I think some of the statistics that we went through talked about how. Whereas other types of specialist for example may do most of their work where they need to a certain segment of the population age wise just based on when a certain types of conditions might occur or that certain types of conditions or certain types of people are more prone to them than others. I think mental health kind of cut the cross all of that and says you can have children, you can have adults. You can have the elderly. I mean and there’s so many different types of mental health conditions. It creates a conundrum and then you add to a fact that there’s a shortage of providers.
Clay: Absolutely. And then this idea, specifically, to telemental health. I guess because we’re coming right off the heels of the election and I have that CNN map in my head where all of the different counties are out there. That map that was blue and purple and red. That 55 percent of counties in the United States have no mental health counselors, 55 percent of the counties. You think about people getting in to their car and driving for counseling session. They were going to have to drive to different county to see someone. So telemental health is, hopefully, I think a lot of states are looking at this as a way to fill that gap.
Amy: I hope so. I think again it’s a fairly easy modality to put in place especially for the very sense of behavioral health services. Again we’re talking about conversations that people need to have over a secured transmission method in a confidential manner. Some of the other factors that exist relative to other types of care that needs to be provided to patients don’t exist in this context. So I said why not? We can really start to tackle the access problem. Assuming people even have the capacity to drive to something. Some people don’t. We can just put this into their homes.
Clay: Absolutely.
Amy: We can put this into community-based clinics. Other things that are more easily accessible for people to get to rather than having like what you said to drive to the nearest county which could be hours away to have a doctor.
Clay: When looking through this, you also look at some of the obstacles to telemental health. Let’s talk a little bit about that from you’re hearing from your clients, therapists, counselors that are interested in doing this. What I’m hearing is a lot of fear. I’m going to have to purchase a lot of expensive equipment. What are you hearing on some of the concerns from your clients and some of the obstacles that you’re seeing to the growth of telemental health?
Amy: I think there are a couple. I mean certainly everyone has their own different best based on exactly what they’re looking to do. I think there are definitely some recurring themes. A big one that comes up is the concern over licensure, professional licensure. I think that the survey, hopefully from the listener’s perspectives, did a good job of trying to at least give you a road map as to if you’re going to be treating and counseling patients in various states to give you sort of the word map for. It’s not pretty but this is what I might need to do relative to the different states in where the patients are located. Because generally the rule of thumb is that care attaches to the patients. You’re sitting in the state of New York and you’re looking to counsel me, sitting in the District of Columbia. What does the District of Columbia say about what’s culture of license you need to have in order to provide that service to me? Every state is a little bit different. I think that actually in some ways was one of the low hanging prove that the survey was able to sort of, we were able to put our arms around. It’s a little bit cumbersome. But there’s a way to do it.
So I think people get a little bit of cautious and tentative about the professional licensure obligations, and to make sure it doesn’t have an impact on the license that they currently hold. We get that question. I don’t want to put my current license in jeopardy be it from the state of New York or the state of Florida or wherever it’s from. How do I do that? Well, until they develop some sort of national licensing infrastructure which I think there are a lot of great attempts and works for different types of providers. Nothing so far is universal. Every state really makes its own woes, with respect to professional licensure.
Clay: Do you think that we’re going to go to a national way? Is that something’s going to happen, you think?
Amy: I think if I had to guess just base on the trends, I don’t seem like a national infrastructure coming into play as much as a number of different bodies starting with the National Council for Supports of Nursing. I think that’s the first to do it. Federation of State Medical Boards has more recently done it. I know there are some other I think psychologists maybe were trying to do it. Compacts where, by way of a compact, different states had agreed to join the compact and it would provide a pathway to expedite the licensure. So the Federation of State of Medical Boards again applicable to MDs and DOs only at this point in time. But the federation has a pretty great website that sort of educates on what a compact is and what its set out to do and then the state have to join it, and then there’s a committee that is working now I believe to operationalize it. It doesn’t take away from any of the states that are members of it the ability to regulate professional licensure within its boundaries. It it recognizes things like telehealth as becoming so prevalent in healthcare and says let’s figure out a way to expedite. If someone’s in New York, New York as a member of the compact says, “Wow! I’d like to apply through this process to get expedite licensure from three other states that are also members of the compact.” It’s a common ground for reviewing some of the information that’s common to licensure applications. You still have to pay the fees. You still obligated to visit all the states. But hopefully, it wouldn’t require to go to twelve directions to get twelve different licenses. But you still have to get them though.
Clay: And upkeep them every year, which can be expensive.
Amy: And cumbersome too even for some larger like larger companies. Someone asked me that question. Was it harder or different for me as a solo practitioner as compared to a larger company? I said not really. They just employ more providers and so maybe they have a better system for keeping up with it. But the rules are still the same with respect to licensure.
Clay: Are you aware? I mean everybody I think are certainly listening to the podcast knows that I need to be licensed where my client sits. There are people out there that are not following that and then just kind of take the client and that’s one of the filters that we put on the directory that we developed. We ask the client what state they live in and then they only are shown therapists that are from that state. So, have you ever heard of or is there a case out there of someone who has gotten into trouble because they did counseling with someone outside the state they’re licensed it?
Amy: I think you know, generally speaking as far as enforcement in telehealth, there’s very limited published information that we’ve been able to track. That to me seems like a professional licensing board issue. That again, if you were curious to know whether the state of New York they are board of social workers has enforced that against anyone. I bet it would be somehow the decisions would be unrecorded through that board. Unfortunately a state by state exercise we’re trying to dig in to something like that. It would probably be something to practicing without a licensing or practicing in violation or something like that. The state would have that sort of language I would imagine on their books, and then it would be up to that licensing board, that regulatory board to enforce.
Clay: So the risks are there.
Amy: I think the risks are absolutely there.
Clay: People are wise to look into. That’s what I think you’re document. I’m sorry somebody’s ringing the wrong bell. That’s what your document is doing is to inform therapists that they, they’re protecting themselves.
Amy: Absolutely.
Clay: Okay. So I interrupted you. You were talking about some of the obstacles that you’re hearing from your clients and some concerns about telemental health. Anything else other than some of the state licensure issue?
Amy: Yes. I think I would have two others I would add to the list just sort of like the top ones that’s what I get questions about. The next one is I would say is probably—and it depends again on the provider and the business model—reimbursement, coverage and reimbursement. Depending on the patient fees and the sources from which the US that provider would seek payment for your services. That’s again, state by state yes in terms of Medicaid. You’ve got basically three brackets. You’ve got on the state side, Medicaid. Every state Medicaid program is going to dictate those rules with respect to coverage and reimbursement a little bit differently. You’ve got Medicare. For any segment in your population that is using Medicare, Medicare has its own set of coverage and reimbursement rules with respect to telehealth. I think Medicare is trying to expand the scope of services that are covered provided via telehealth. But the rules, the parameters to which a provider can provide those services, the type of provider that can provide them, the site at which the patient has to present, the geographic area in which the patient has to be located, some of those more limiting factors have not change about Medicare reimbursement model for telehealth.
I think there’s been attempts on the federal legislative level to trying to change that scheme but you’re dealing with I think with some pretty stiff requirements with respect to that. And then you’ve got the private pay side. Private insurers I think are doing a number of really interesting and innovative things with respect to telehealth. I think behavioral health in particular is an area where both Medicaid as well as private pay, payers have recognized that this is an area where coverage hopefully is something that they believe is worth providing.
You also have the mental health parity laws which I’m not extremely knowledgeable about but sort of on a federal level are mandating insurers to balance coverage for mental health services in a way comparable with other types of healthcare services being provided. Hopefully that would be a pressure. Positive way on payers to really try and provide this coverage.
Payer policies are individual to the payer not publicly made available. We get anecdotal stories from different clients about the different policies that may be applicable. We work with them to understand whether they would be. And then you have parity laws, a newer type of parity law state by state that is talking about parity between services provided in person and services provided via telehealth. There’s probably about 25 states at this point that over the last couple of years have been active in these types of parity laws. They say to insurers, generally in the area mainly of coverage although some talk both about coverage and reimbursement that insurers should be providing covering services and in some cases reimbursing for those services in a manner that is comparable to how they would reimburse for this services if they were provided in person.
Clay: Wow.
Amy: Sounds great. But I think what we’re hearing from some of our clients—and again it’s anecdotal, it kind of like depends on who you talk to—is that that’s the law. We’re not super sure about how payers are really abiding by that law in practice as they kind of manage their networks of providers and they contract with providers to be part of those networks. I think that it’s again it’s part of this evolution, and with any luck as telehealth services become and continue and continue become more pervasive, those parity laws will be beneficial to providers over time. So that would be number two.
I think the third big one would be the issue of prescribing, which I know probably for some of your listeners is an issue. Others it’s not.
Clay: Maybe some.
Amy: Depending on the type of provider. For the provider, I guess psychiatrist in particular, looking to prescribe, remote prescribing laws, again, we’re talking about that federal state balance. So you’ve got at the federal level, The Ryan Haight Act which amended the control substances act and places some limitations on how controlled substances if those are the types that are intended to prescribed can be prescribe via in remote encounter. Sort of like the Medicare reimbursement rules like it doesn’t say it’s impossible but it places a lot of restrictions on it which definitely I think through the analysis for a lot of our clients. It turns it into a little bit of a tail spin. You know can I really do this? Do I have to set it up in a certain way?
I think that The Ryan Haight Act was enacted I think back in 2008 when the concern, my understanding is that the DA was very concerned about internet pharmacies issuing prescriptions based on nothing more than the questionnaire that somebody filled out. It was not really like talking about this direct to consumer. I look at you, you look at me. We have a conversation and then you use the professional decide, I want to prescribe something to you. I think that there’s been some movement under foot to hopefully create an exception that would help telehealth provides. But again then you have the state provisions. Some states have really looked at this issue and recognized that telehealth is a way that providers are interacting with patients and talked about prescription can be given by way of a telehealth modality. It requires an encounter between patient. It sorts of lays out the parameters. Other states say we can’t issue a prescription unless you have an in person visit which kind of kills the telehealth model for a lot of providers. So, all over the map but I think depending on the business model, there are providers who are quite concerned about how if they need to prescribe they would be able to issue those prescriptions.
Clay: Thank you. Those are good things to think about. So many of them were answered with your survey. Now, let’s jump into some of the things you found out. You did a nice listing of some unique things like that Kansas, you must have an informed consent. Delaware, they must conduct a risk benefit analysis before conducting telemental health. Was there anything that come to mind, anything that surprised you in conducting this survey and it’s like, that’s different or wow it’s really complicated in California I think. Anything that comes to mind? That was unique or?
Amy: Nothing. I’m thinking. I feel like our feeling after kind of looking at the full document once it was all done was that, every state is so different in how they’re doing it. I don’t think anything necessary surprised us. I think we looked at it and said there are certain states that are incredibly detailed. Other state that have been more laid back about the approach. There are states that are very progressive or we think on this very progressive just in the telehealth space generally. California for example I think has been sort of the forefront of looking at the issue. But not necessarily other states haven’t done as much. But we were sure whether to take that in every case as you can’t do something in that state or you need to do something specific. I think we kind of looked at it and said there aren’t really any trends that we see but you can see that it’s kind of the moving target as you look state to state that states are thinking a lot about the licensure piece of it. States are thinking a lot about the reimbursement piece certainly in the Medicaid context. Those are some of the big things that stood out to me, at least, as I flip through the survey. It had been a while since I flipped through it. Those are some of the areas where I felt that the change is going to happen most rapidly right across the states.
Clay: You went to each state. You looked at the regulatory body. You looked at any current restrictions in that state. To back up and say you looked at the professions of psychiatry, psychology, counseling, social work and nurse practitioners.
Amy: Yes. That sounds right.
Clay: I think I missed one.
Clay & Amy: Marriage and family therapists.
Clay: I’m going to get some bad calls on that one.
Amy: So we had a complete list together. We’re a very good team.
Clay: Yes we did. We did together. So you look at those six professions. You look at the regulatory bodies. The state licensing board. You look at in the restrictions. Specific license requirements for each one. You also look at accepted modalities. I put a call or email out to a Philip O’Wise and Carol Smith Jones about the possible email and texting or chatting. When you think of telemental health, a lot of people think, like what we’re doing right now is an audio visual connection. But there’s also email therapy. There is IM and chat and texting. Did you look at that? Is there anything specific out there or in regards to those modalities?
Amy: I feel like that as we put the survey together originally, that was an issue that we were not thinking directly about. But I will say that it has become a question that certainly as we look ahead to an update maybe worth exploring. I think it falls squarely into, and I know the survey looked, I think like maybe type to type as to what was the practice of psychology. What was the practice of? I think we tried to look to see if there were any diminutions as far as is a conversation with someone via text, considered practicing social work. I would say a large part states don’t really define that. A more important place I’ve seen—and this is sort of post survey—I feel like a lot of the professional licensing organizations or have talked a little bit like sometimes they publish a position paper like that National Association of Social Workers or something like that. I guess they must be getting questions from people who hold these licenses. I feel like they have been a helpful resource as we’ve now had to answer questions in that realm to say, “Do I consider a text treatment? I don’t know.” I think that is a question that’s becoming increasingly more important. I don’t think we really focus as much on it. If we saw it, we pulled it out. But I think it was something we didn’t see very often. But only since we did the survey, that is the big question for people. Text therapy, email, sort of like what constitutes an encounter that I have to start worrying about all of these different types of rules.
Clay: Okay. Alright. Good. I wanted to get that in there.
Amy: Yeah. It’s a great question and is definitely one that we are trying to where there’s clarity, we’re trying to find it. So that we can offer it to clients.
Clay: Are there any states that specifically build into the different platforms? My listeners know that Skype is not compliant with HIPAA. There’s a lot of businesses that are cropping up that will allow a therapist to go through a HIPAA encrypted compliant platform. Are there any states that get down granular and specific about that?
Amy: I don’t think so. I think that on one level, states talk usually in the definition of, usually it’s a definition like telehealth or we saw things like telepsychiatry, telepsychology. Tel psychology we will seek more often. When they talk about, they talk about what would constitute that type of encounter. They’re going to use those terms like real time, live, audio, video, asynchronous, whatever it is. They define it that way. I think you would then have to take that definition and apply to the type of technology you were considering. To say, Skype is live. Skype is video, like can I do this over the phone? And then you also then have to think about, as you said correctly, the HIPPA, the privacy and security considerations related to that. The protection of the health record that is essentially created by having the encounter with the patient and both from the HIPPA, the federal standard as well as any applicable state standards. We need to do and maybe that would also help. I’m sure providers who are putting these platforms are hopefully are thinking about these things to be able to answer those questions prior to a provider purchasing. So I think you have to think of it two four. Like there’s a question like what is it mean to practice telehealth? The state should hopefully in many cases be defining that which is going to give you some sort of a clue. But then again from the creation of that health record, the privacy and security considerations need to be focus.
Clay: Absolutely. It would be so nice if we have one term from telemental, to e-counseling, to internet therapy. I think somebody said there’s 55 different terms out there for what we do.
Amy: Oh my gosh! That’s 55. That’s a lot. I mean I know we get questions what’s the difference between telehealth and telemedicine. I think that while there used to be more of a difference and if you ask me, I’m not going to remember what it is. But I think they are used so interchangeably now. I think that kind of bring it. There’s 55 different terms, whatever makes the most sense. I’m not sure if people are delineating anymore. But that doesn’t surprise me.
Clay: One of my big questions and I know that look at the United States, 50 different states. I’ve got a lot of international callers, listeners. Do you know anything about international law pertaining to telemental health in the aspect of let’s say my degree here in New York, if I get a call somebody in the UK or Dubai, am I putting my license at risk for doing counseling that way? Is it illegal for some therapist in the UK or Canada or Mexico to do counseling with a citizen in Alabama? So it’s kind of both ways. So what do you think?
Amy: I think we should break this down a little bit. Let’s go with the second scenario. Because I think that’s the easier one to talk to and I think we’ve kind of already talked to it. If someone is sitting, if a patient is sitting in Alabama, and the provider is sitting in the UK or Dubai or wherever, I think as we were talking about it earlier, we still have that notion of care attaches to the patient. So I think the provider sitting up abroad would need to be mindful of that and say state of Alabama. I’m treating someone. What from your perspective do I need in order to treat that patient because I think that the state of Alabama is going to say that patient sits within my boundaries? From a professional licensure or regulatory stand point, I’m going to have some issues with it if things are not done compliantly. I think that one is a little easier. Obviously there’s the burden of having to think about obtaining multiple licenses to practice. But at the same time, I think that one while burdensome potentially is easier to kind of say, we need to really think where our patients are located within the US and think about the licensure rules. However they might apply to what you’re going to deal with those patients.
Clay: So there is potential for that person in Dubai or the UK doing therapy with the US, and in the United States, they’re potentially breaking a law or regulation in that state. We’re getting an example of Alabama and they’re putting them self at risk. Are they going to be extradited to Alabama to face charges? We don’t know. But the black and white, they are potentially breaking a regulation.
Amy: Potentially depending on what Alabama’s professional licensing and other laws talk about as far as treating patients and what’s considered providing treatment without a license by the state of Alabama’s standard.
Clay: I just want to clarify that.
Amy: Like you said there are a lot of people who are abroad in various capacities and I think that’s an important question because again it’s a great modality for being able to provide the care this way. It’s not insurmountable. It’s just something that providers in that particular scenario would have to be mindful of. But let’s take the opposite scenario. Provider sitting in the state of New York. Patients far-flung from worldwide, UK, kids who study abroad. We got that question from people. People are very global and mobile and move all over the place. I think it’s a little bit of an unknown. Certainly, the state of New York might have something to say about the capacity to achieve user license to treat people outside the state of New York and/or for that matter that the continental US. I don’t know. But I think that it would certainly be worthwhile for provider to consider my patient is in the UK, is there anything from the UKs perspective that would prevent me? Do they have the same philosophy? I don’t personally know that. It would be something I need to research and I would want to research but it’s possible the UK could take a similar position and say from a protectionist stand point, we want to make sure you’re properly licensed. Maybe there’s some sort of a license exception that might satisfy this. Maybe it’s considered a certain type of consultation or something like that. But I would certainly say it’s worth looking into. So as not to put your professional license in jeopardy because let’s say you did nothing and the UK from a regulating stand point that annoyed that you’re treating the patient, could they contact the state of new York to have them remove your New York license, I don’t know. But I’m just wondering if they could have a reverberating effect in the opposite direction and jeopardize your livelihood. I am sure countries probably have varying standards. But I think telehealth is extremely prevalent worldwide. But I think it does require sort of the same as state by state law maybe a country by country law.
Clay: Absolutely. Anecdotally talking with the people that I’ve talked with Australian-UK that licensure is kind of a US-Canadian concept. Internationally, it’s more as accreditation, certifications. So that anyone could potentially in Nigeria say, “Hey I’m a therapist I read a book and they hang out their shingle.” But they need to be accepted by the Nigerian mental health accreditation in order to be reimbursed to be have some sense of acceptance by the community. That does kind of open things up. Very few countries that I’m coming across have that type of regulation and restrictions. But maybe that’s the next step that maybe I can add to the knowledge out there is this is what they say in Dubai, this is what they say in Australia etc.
Amy: Exactly. I think that’s helpful because I think people are looking to sort of expand the boundary of providing care, and it make sense that we would sort of start to take a look at it and go beyond the US to figure out how we do this virtually. Maybe the burden at the end of the day isn’t so great. Like if it’s an accreditation and you have to get it, how hard is it? Maybe it’s not that hard at all and it’s just worth taking that little extra effort just to ensure that professionally speaking, you’re kind of covered on both end. You’re covered sitting in New York that you haven’t done anything wrong from New York’s perspective. They can’t put your license in New York in jeopardy. But also from the UK or whatever other countries’ perspective. You have the recognized credibility or acceptance or whatever that country needs to see you have in order to treat patients you live in or they live at.
Clay: I would be cognizant of your time. But is there anything that you’re thinking, wow we really should talk about this, maybe a one great tip out there or to all those therapists that are listening, that are thinking or doing telemental health, anything you want in closing add?
Amy: I think we’ve covered a lot. Although we’ve talked about it a little, I think that as I work more with different types of providers, either behavioral health, medicine or otherwise, I think that where people seem to find it most helpful is to like think through their scenario. So a lot of the questions we’ve been talking about today sort of, where would your patients be? Who’s going to pay for the care? What modality you’re thinking about using almost to develop a schema and a business clan and to figure out sort of where you may have the questions. It could be as the times that you’ve been able to do doing a little bit of research yourself is not a bad thing. But you can help identify risks and maybe you seek counsel from an attorney based on a certain lists. Some of them are obvious. Educate yourself.
But I think sometimes we get people who haven’t thought through like the whole plan from start to finish. And then it’s like they’re thinking of things as it comes up and then we have to kind of run behind them saying, “What about this? What about that?” So, I think giving some forethought to know how any type of business arrangement would be structured to provide the services in this manner is probably worth doing and anything for that issues and then figuring out where if at all you need some legal counsel to help kind of flesh out the regulatory answers or to just help validate that there are still a lot of gray areas and that’s okay. It’s like you can’t be faulted for there being a gray area, but it’s helpful to identify it and to kind of come up with a plan for tracking it. Again, moving targets in all these areas with respect to all the states who are looking to actively regulate in the area which is a great thing. But it does require a little bit of extra work on the part of attorneys and the providers to make sure that you’re staying abreast of what the difference is between doing this in New York or Pennsylvania, the UK or Dubai so that you are doing it compliantly.
Clay: Absolutely. I say it, seems like a hundred times a day, information is power. Once you have the information, you’re protected. There’s a lot of people out there that are in need of the services. Let’s just figure out how to do it well. Amy, I can’t thank you enough and Epstein, Becker and Green. This 50 states survey is a gift to the field. Thank you so much. We’re going to have it listed on our website in onlinecounselling.com. You have it on your website. We’ll have all your information on there and accredit that appropriately. Thank you so much for doing this.
Amy: You’re very welcome. Thanks again for having me, and again we’re happy to be a resource. And we enjoyed doing this work and working with the providers who are seeking to expand into this area of care because we think it’s definitely a big part of the future of health care and an important part.
Clay: An important part. Great. Thanks so much.
Amy: Thank you.