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Legal & Ethical Strategies for
Successful Distance Counseling
Learning Objectives
• 1. Describe 3 ethical dilemmas related to Skype,
Google and Facebook, blogging and the ethical codes...
Disclaimer
• I am an MFT and clinical psychologist, not an attorney, physician or
Information Technology specialist. The i...
Housekeeping
Schedule
Restrooms
Questions
WiFi
Twitter @ica
What’s going on?
• Technology
• Health Care Reform
• Distance Counseling
Our planet is
re-tooling
as is
psychology
Real-Time Telemedicine
Patient in rural ER gets benefit
of local care plus remote
consultation with specialists.
Remote do...
Distance Counseling & Other Services
December 2013
R
O
B
O
T
I
C
S
Electronic Health
Records
Step 1: Training
Step 2: Referrals
Step 3: Patient Education
Step 4: Legalities
Step 5: Assessment
Step 6: Direct Care
Ste...
Telehealth vs. Distance Counseling
(working model not to scale)
Behavioral
Telehealth
Disciplines, including
Distance Coun...
What are the Current
Models for Distance Services
in Counseling and Other
Disciplines?
Traditional Behavioral Telehealth Model
Traditional Behavioral Telehealth Model
• Hub-and-spoke model
– Only work with previously identified clients/patients
who ...
Online Norm vs. Traditional Behavioral
Telehealth (or Telemental Health)
Traditional Online Therapy
• Mostly Email & Chat
...
Online Norm vs. Traditional Behavioral
Telehealth (or Telemental Health)
Traditional Online Therapy
• No Contact with Othe...
What’s happening?
OCPM: Online Clinical Practice Management
Disruptive Technology
Disruptive technology is a term coined by Harvard Business School professor Clayton M.
Christensen t...
Society for Technology & Behavioral Health
Innovation,
Implementation &
Consultation
COMMUNICATION &
COMMUNICATION
NETWORK...
Benefits of Traditional Video-Based Telehealth*
• Increased client satisfaction
• Decreased travel time
• Decreased travel...
The Is Video Teleconferencing
(VTC) Effective?
• Yes
– Medicare & Medicaid required to pay
• Outcomes are relatively compa...
Recent Supporting Research
• Godleski, Darkins & Peters reported in April of 2012 that
hospital utilization in psychiatric...
Recent Supporting Research
Backhaus and colleagues (May, 2012) reported in their abstract
of a meta-analysis that:
• 821 p...
SYNCHRONOUS TELEHEALTH TECHNOLOGIES IN PSYCHOTHERAPY FOR
DEPRESSION: A META-ANALYSIS
Janyce E. Osenbach, Ph.D.,∗ Karen M. ...
Primary Focus: Not the technology, but
rather, the service we deliver (also allows
for reimbursement)
Nonetheless, Differe...
Social Media
It is ethical
to have a
page on
Facebook
or a similar
advertising
page on
Google+ ?
35
9/21/2012 36
Social Media Is Not Private
• “Anything you say, post, link to, comment on, upload,
etc., can and may be used against you ...
OCPM Step 1: Professional’s Self Care
• Boundaries
– Office hours
– Unplug
• Reputation
management
• Community of like-
mi...
All Existing Legal
& Ethical
Rules
Apply
http://www.americantelemed.org/docs/default-
source/standards/practice-guidelines-for-video-based-online-
mental-health-se...
Boundaries of Competence
42
Multicultural Issues & Diversity
Multicultural /Multlingual Issues
Issue
• Global nature of the
Internet – worldwide
audiences
• Multicultural issues are
q...
In-Person Contact
APA Telepsychology Guidelines:
• In addition, psychologists may consider some
initial in-person contact ...
Do you see well enough?
•Image Resolution
• ATA Guidelines
Are you conducting an intake
or follow-up?
• Most of the scient...
ACA Code of Ethics (2005)
• A.12.c. Inappropriate Services
– When technology-assisted distance counseling
services are dee...
ATA
Patient Appropriateness for videoconferencing-
based Telemental Health
• To date, no studies have identified any patie...
Caution – Consider Context
Online Norm vs. Standard of Care
– No Contact with Other
Treating Clinicians
– No Authenticatio...
Caution – Consider Context
Online Norm vs. Standard of Care
• Mostly Email / Chat vs. Video
• Anonymity / No Patient Recor...
TMHI Client & Patient Selection
• Study the evidence base (research)
• People with almost all diagnostic symptoms have
bee...
Step 1: Training
Step 2: Referrals
Step 3: Patient Education
Step 4: Legalities
Step 5: Assessment
Step 6: Direct Care
Ste...
Who is Responsible
• …if you make a referral
to a long-trusted
colleague who suddenly
conducts distance
counseling with a ...
Know the Practices of Your Colleagues
• Ask
• Keep them informed of
your practices and
rationales
• Suggest training when
...
Step 1: Training
Step 2: Referrals
Step 3: Client Education
Step 4: Legal Issues
Step 5: Assessment
Step 6: Direct Care
St...
Technical Issues
• Discuss the technical requirements with the
patient prior to initiating treatment
• Consider the level ...
Tech Check
• Tech check – review potential technology and
infrastructure issues prior to initiating the
delivery of care
–...
Explain technical aspects (camera position,
lighting , audio, noise, clock, etc.)
What are the types of
problems that clients /
patients have reported when
working with clinicians using
videoconferencing?
Client/Patient Training
• Email /Texting/Telephone/Video
• Social networking – social media policy
• File exchange
• Compu...
Clinicians have been reported:
• Eating
• Taking personal cell phone calls from family
• Burping without excusing themselv...
What should I do when
someone enters a client's /
patient's room during a call?
If someone enters the client/patient room:
• What would you do in your brick-and-mortar
practice?
– Stop the session / res...
What should I do when
someone enters my room
during a call?
If someone enters your room:
• What would you do in your brick-and-mortar
practice?
– Stop the session / resume control of...
Why use initial protocols
when videoconferencing?
Initial Protocols
Educate client/patient about the need for routine opening protocols
that might include:
• Your name and ...
Can I get paid for the time
used in helping a client /
patient set up and manage
their equipment?
Paid Tech-Time?
• No payment for client/patient set-up time
• “Facility fees” are available on a per-session
basis for Med...
How do I handle technical
issues created by my video
teleconferencing (VTC)
system during a call?
Tech Problems During a Call
• Practice before you work with clients/patients
• Relax – trust your training
• Have an agree...
What is a community
champion and when is it
appropriate to use one?
Community Champion
• Local collaborator can be helpful for:
– providing information about the patient’s history
– monitori...
Community Champion
• Educate your client/patient about use of a local
collaborator such as a family member or close friend...
What are the must-dos for
community champions and
informed consent to
minimize my risks?
Community Champion
• Assess when using a local collaborator may
not be advisable:
– Safety of local collaborators must be ...
Step 1: Training
Step 2: Referrals
Step 3: Client Education
Step 4: Legal Issues
Step 5: Assessment
Step 6: Direct Care
St...
Dr. Trow vs. Oklahoma Medical Board
• Relevant law
• The case
• Skype
• Lessons to be learned
Full style:
State of Oklahoma ex rel.
Oklahoma Board of Medical
Licensure and Supervision v.
Thomas Edward Trow, M.D.,
Lic...
"Physician/patient relationship” in OK
• “…a relationship established when a physician agrees
by direct or indirect contac...
IC: OK Telemedicine Act, OAC
§36‐6804
• A. Prior to the delivery of health care via telemedicine, the
HCP who is in physic...
IC: OAC §36‐6804, 2
• 2. A description of the potential risks, consequences,
and benefits of telemedicine;
• 3. A statemen...
IC: OAC §36‐6804, 3
• B. The pt shall sign a written statement prior to the
delivery of health care via telemedicine indic...
IC: OAC §36‐6804, 4
• For purposes of the delivery of mental health care via
telemedicine, the use of telemedicine shall b...
Telemedicine for Mental Health (OK
2008 Policy)
• Telemedicine technology is limited to consultations,
psychotherapy, psyc...
Telemedicine for Mental Health (OK
2008 Policy), 2
• The telemedicine equipment and transmission
speed must be technically...
Telemedicine for Mental Health (OK
2008 Policy), 3
• The physician who has the ultimate responsibility for
the care of the...
Trow: OSBMLS Telemedicine
Guidelines
• Ok. medical practice act requires initial in-person visit before MD can
prescribe R...
Trow: Stipulated Facts
• Dr. Trow is an unemployed 65 yo pain management
physician
• Orthopedic problems make travel diffi...
Stipulated Facts, 2
• 8/17/12 Ok. HC Authority (“OHCA”) letter:
– No contract with OHCA
– Using unapproved equipment
– No ...
Stipulated Facts, 3
• Dr. Trow caused NO patient deaths
• Dr. Trow billed OHCA for Skype services; not an approved
telemed...
Procedural Posture
• Disciplinary matter, not a
private (malpractice)
claim
– ?Possible in future?
• Defendant pled guilty...
Conclusions of Law:
Unprofessional Conduct
• Dishonorable conduct
likely to deceive or harm
public
• Prescribing without
–...
Consequences
• License suspended
• MD to take prescribing
course
• No CDS prescribing until
– 1. Course completed
– 2. Dr....
New Ok Definition: “Face-to-Face
Encounter” by TM
• “It is the position of the OSBMLS that the face-
to-face encounter req...
Oklahoma Law is In Flux
• November 7, 2013: Board held a public forum to
discuss the use of telemedicine in Oklahoma
• The...
What are the take-
home lessons from
the Trow case?
Take-Home Lessons
• Case reflects Oklahoma law only
– But Oklahoma is relatively telemedicine-friendly (“SoonerCare views
...
Take-Home Lessons (Cont.)
• Obtain and document informed consent
– In Oklahoma, must be in writing
– Check your state’s la...
FSMB, as of 8/12
• 10 state boards issue a special purpose license,
telemedicine license or certificate, or license to
pra...
Full Discussion
• The previous slides were from a webinar given
1/20/2014 through the TeleMental Health
Institute.
• Guest...
Specific Informed
Consent Processes and
Documentation
ACA Code of Ethics (2005)
A.12.a. Benefits and Limitations
• Counselors inform clients of the benefits and
limitations of ...
ACA Code of Ethics (2005)
A.12.g. Technology and Informed Consent
• As part of the process of establishing informed
consen...
Verify with a Local Telehealth Attorney
• Use next suggestions, but
I am not an attorney.
• Develop your document
and veri...
Informed Consent
• Represents a “meeting of the minds”
– Information is influenced by many factors, including
• Client/Pat...
Informed Consent: Function of State
Law
• Specific statutes govern informed consent in
telehealth
• Who’s state law contro...
TMHI Informed Consent Documentation Basics
• Date
• Diagnosis
• Outline of
intervention
• Risks and benefits of
each techn...
TMHI Informed Consent Documentation Basics
• Emergency Resources and
Plan including names and
contact information for
loca...
TMHI Informed Consent Documentation Basics
• Confidentiality and limits
thereof as related to
mandated reporting (suicide,...
TMHI Informed Consent Documentation Basics
• Some risks may not yet be unknown*
• No physical exam*
• Identify both the cl...
TMHI Informed Consent Documentation Basics
• Discuss the purpose of
remote contact
• Inform clients of who
will have acces...
TMHI Informed Consent Documentation Basics
• Describe the specific roles of any consultant or local
referring practitioner...
TMHI Informed Consent Documentation Basics
• Describe how deficiencies electronic equipment
could possibly cause interfere...
TMHI Informed Consent Documentation Basics
• Document technical requirements with the
client prior to initiating treatment...
Emergencies
Have a plan.
• Discuss carefully
• Write plan in your informed
consent document
• Develop prior relationships
...
NBCC: Standards For Distance Professional
Services
• NCCs shall carefully adhere to
legal regulations before providing
dis...
NBCC: Standards For Distance Professional
Services
• Boundaries of
competence
– NCCs shall provide only those
services for...
Privacy, Confidentiality, Diversity
• Privacy & Confidentiality
– Understand your
technology (email,
texting, video) and i...
Service to the “Home”
• Scientific evidence base
for contact to the home is
much thinner, less
reliable than traditional
t...
TMHI Clinical Competence
Client Selection
• Study the evidence base
(research)
• People with almost all
diagnostic symptom...
TMHI Clinical Competence
Client Selection
• Most of the studies mentioned
above include the assistance
of a local collabor...
Levels of Security
Interjurisdictional
Licensure Issues
2014
20/20: A Vision for the Future of Counseling
4) Creating a
portability system for
licensure will benefit
counselors and
st...
Inter-jurisdictional
Practice
Licensing Boards that may
assert jurisdiction:
• The one in the
professional’s state(s)
of l...
Inter-jurisdictional
Practice (cont.)
Special telehealth and in many cases,
“telemedicine” laws have led the way
• Prescri...
Licensure Requirements for Professional Counselors – 2014
What’s New for 2014
(page 4)
Licensure Requirements for Professional Counselors – 2014
What’s New for 2014 (page 4)
Special Telehealth Licenses or Certificates
Licenses could allow an out of state provider
to render services via technolog...
States with Laws Mandating Private Insurance Coverage of Telemedicine
Special Telehealth Licenses or Certificates
• Alabama
• Louisiana
• Minnesota
• Montana
• Nevada
http://www.fsmb.org/pdf/g...
Innovative Models
• National Council of State Boards of Nursing
(NCSB)
• Federation of State Medical Boards (FSMB)
• Assoc...
Levels of Security
Licensure
Portability
Legislation
2014
2010
TELEmedicine for MEDicare Act, 2013
• HR 3077, the “TELE-MED Act” was introduced
Sept. 10 in the House by Reps. Devin Nune...
TELEmedicine for MEDicare Act, 2013
• In the case of a Medicare participating physician or practitioner who
is licensed or...
Legal Suggestions
• Counsel each other &
document those
conversations
• Communicate often to
your local, state and
nationa...
Other Legal & Ethical
Issues for Distance
Counseling
Duty to Report / Duty to Warn
• (v) Failing to comply with the child
abuse reporting requirements of
Section 11166 of the ...
Practical Application: Check on
Technology
• Tech check – review potential technology and
infrastructure issues prior to i...
Opening Protocol*
• Identify yourself and your geographic location
• Ask your client/patient to do the same
• Audio/video ...
Local Collaborators or Champions
Mention Other Safety Issues
• Have an addendum to
your informed consent
document
– Include social media
policy statements*...
Safety Issues to Consider
• Is there access to firearms in home-based
care?
• Discuss firearm ownership, safety, and the
c...
Safety Issues to Consider
• Assess potential technology and infrastructure
issues prior to initiating the delivery of care...
Safety Issues to Consider
• Identify and use of a local collaborator such as a
family member or close friend of a patient
...
Safety Issues to Consider
• Local collaborator can be helpful for:
– providing information about the patient’s history
– m...
Safety Issues to Consider
• Assess when using a local collaborator may
not be advisable:
– Safety of local collaborators m...
Safety Issues to Consider
• Discuss the technical requirements with the
patient prior to initiating treatment
• Consider t...
Intake Summary
• Explain & sign informed consent document
• Conduct a formal intake – no shortcuts
• Meet in-person or vid...
Telemental Health:
HIPAA, HITECH
& Your State Law
OCPM: Online Clinical Practice Management
HIPAA
• Three Rules:
– Transmission
– Privacy
– Security
Three HIPAA
Rules:
• Transmission
• Privacy
• Security
HIPAA Privacy Rule
• Data are “individually identifiable” if they
include any of the 18 types of identifiers,
listed below...
HIPAA Privacy Rule (cont.)
1. Name
2. Address (all geographic subdivisions smaller than state, including street address,
c...
Email
• A 2009 study by the
American Psychological
Association showed that
9.8% of psychologists polled
reported using ema...
Email
• HIPPA Omnibus Act
allows us to have email
contact without
meeting usual HIPAA
standards when risks
are fully discl...
The HIPAA Compliant Email
Companies
Current Surveys
The Professional survey:
ttp://tinyurl.com/kpnfh75
The Consumer survey:
http://tinyurl.com/mb86oav
Researc...
Skype?
Skype’s Most Recent Hacking – November 2012
Is Skype Reliable?
Skype tiles &
pixelates, the audio
gets tinny, echoes
develop, and often
calls drop entirely.
Sometimes...
HIPAA requires an “audit trail.” Skype doesn‘t
provide audit trails – and isn’t obligated to ….
Skype’s Privacy Policy
• Skype may gather and use info about you…
– Identification data (e.g. name, username, address, tel...
Skype and Health Privacy
• AES 265-bit encryption
• Free
• Access to patient’s environment
BUT
• Skype makes no claim that...
OCPM Step 3 Legal Issues:
Which Technologies to Use?
• No Guesswork Needed
Internet-based, VTC Companies
Claiming HIPAA Compliance*
• Access Psychiatry
• Adobe Connect
• Behavior Imaging Solutions
...
What makes you a “covered entity”?
• Use HIPAA compliant
technologies and
develop written
processes
– Document policies
• Security & privacy policies
– Repai...
HIPAA “Final Rule” January 17, 2013
• Business associates of covered entities are directly liable
for compliance with HIPA...
HIPAA “Final Rule”
• Infrastructure, documentation,
and procedures for
information privacy and
security, and data encrypti...
HIPAA “Final Rule”
• When HIPAA was first passed in 1996, most health care
practitioners, hospitals and insurance companie...
Copyright 2012 TeleMental Health Institute, Inc. All rights reserved.
• All Business Associates in health
care must sign a...
HITECH
• If aware of a potential
breach of protected
health information:
– Conduct risk assessment
– Mitigate breaches
– r...
HITECH
Implement or update
privacy and security policies
and procedures:
• Need policies to be
written (a paragraph is ok)...
HITECH
Do not disclose treatment
information to your client’s
health insurance carrier for
they have paid out-of-
pocket, ...
HITECH
• Clients may ask for copies
of their electronic health
records in electronic form.
• For example, you cannot
make ...
HITECH
Email
• Send PHI in unencrypted e-
mail only if the client is
advised of the risk and still
requests use of email a...
What are risks of sending
unencrypted email?
HITECH
• There are additional new
restrictions on marketing
and sale of PHI, which
should be included in
counselors’ HIPAA...
HITECH
Update your Notice of Privacy
Practices:
• OCR and the Office of the
National Coordinator for
Health Information
Te...
HITECH
NPP
• Make available to existing
clients on request
• Post on your website
• Display in a prominent
location in you...
HITECH
Update Business Association
Agreements (BAAs)
• Contractors &
subcontractors
– Billing
– Data storage
HITECH
• Many states have their
own privacy laws, which
can be more stringent
than federal law HIPAA &
HITECH.
• Consider ...
Where can you get all
the needed HIPAA
forms?
Enforcement
The most common types of
covered entities required
to take corrective action:
• Private Practices
• General Ho...
http://www.counseling.org/docs/ethics/aca-hipaa-hitech-9-23-13-compliance-date.pdf?sfvrsn=4
What about text messaging?
Privacy
Cross-over
Technologies
Many people send
text messages over
Skype. Do they
count?
Safety Tips
Some large text-
messaging system
vendors marketing to
health care
professionals don't
bother with HIPAA, and
...
Global Smart Messaging Suite
• How text messaging was
utilized for reminders and an
educational tool to ensure
adherence t...
Other Platforms
• Engaging targeted
audiences with text
messaging has become
a cost effective tool in
health and wellness
...
Safety Tips
Most cell phones message
are unencrypted.
Encryption is required when
transmitting any form of
protected or Pe...
Remedy for Breaches
Under HIPAA, when a device
used for text messaging is
lost, any text message about
a clinical, billing...
Safety Tips
The Australian
Psychological Society
advises against the
use of slang and
emoticons when
communicating with
cl...
Safety Tips
Download your text
messages from your cell
phone into your patient
files.
You can find software for
this funct...
Safety Tips
Be aware that you can
text the wrong person
in your address book
with information that
shouldn't be shared
wit...
Safety Tips
All text messages
reside on your SIM
card in your phone,
even if you erase
them from your
visible message area.
Stolen Phone Safety
SAFETY TIPS
• Password protect your phone as
soon as you receive the device.
• Change your online and
...
Empirical Guidance for Text Messaging?
• Where do you find
research?
– http://telehealth.org/
• Look at:
– funding sources...
Security Suggestions
• Don’t Download Any Clinical Data
• Authenticate
– Passwords to lock; passwords to access networks
–...
Step 1: Training
Step 2: Referrals
Step 3: Patient Education
Step 4: Legalities
Step 5: Assessment
Step 6: Direct Care
Ste...
http://www.counseling.org/docs/vistas/multiple-assessment-methods-and-sources-in-counseling-ethical-considerations.pdf?sfv...
Copyright 2009
TeleMental Health Institute, Inc.
215
215
216
APA Ethics Standard 9: Assessment
• 9.02 Use of Assessments - research based, valid, reliable
“for populations tested”
• 9...
OCPM Step 5: Clinical Assessment
• Be aware of language
limitations across
distance
– Use English proficiency
tests to mea...
Pros & Cons?
Private Pay
• Google’s Helpouts
Set your own rate by-the-minute
Google takes 20% / You keep 80%
2. Offer your services for...
Step 1: Training
Step 2: Referrals
Step 3: Patient Education
Step 4: Legalities
Step 5: Assessment
Step 6: Direct Care
Ste...
Where to Get Reimbursement for Telemental Health?
Contractual & Grants Direct Services
Government Services
US Department o...
Where to Get Reimbursement for Telemental Health?
Private Pay / Fee for Service Private Insurance
General These 16 states ...
Access regular updates at:
www.telehealth.org/mandated-states
http://telehealth.org/mandated-states
Keep informed by getti...
OCPM Step 7: Reimbursement
Medicare & Medicaid Reimbursement
–Psychiatrists, Psychologists and Social
Workers but not coun...
2014 Reimbursement Bill
• As part of the 2014 National Defense Authorization
Act, service members transitioning into civil...
Medicare Billing and Reimbursement
• Limited to rural and Health provider Shortage Areas (HPSA)
• Modifiers:
– “GT” for in...
To download,
go to this
webpage:
Telehealth.org
/CPA2013
How and when are
new services added
to the growing list of
reimbursable
services?
Adding New CPT Codes
• CPT codes originate in the Office for Medicare
and Medicaid Services (CMS)
• Annual call for data t...
When is credentialing
required for
reimbursement and
how is that best
accomplished?
Credentialing
• Needed for payment by Medicare, Medicaid and
3rd party carriers
– Similar to being credentialed when we si...
Which 3rd party
insurers are paying,
and where?
3rd Party Carriers
• Largest barrier is practitioner reluctance
• Most large groups are paying
• State-dependent
• No cons...
Are rates for
telemental health
different from in-
person care?
Rates
• Traditional telehealth:
– About the same as in-person care
• Private Pay
– Whatever the market will bear
Which CPT codes
need to be used?
CPT Codes
• Medicare, Medicaid, and 3rd Party Payers
– Differ by Payer
• Contact your payers and ask them to send you thei...
CPT Codes for TMH
• Individual psychiatric interview
• Individual psychotherapy
• Individual & group health & behavior
ass...
Smoking Cessation and CPT codes
• CPT code 99406 (Smoking and tobacco use cessation counseling
visit; intermediate, greate...
Centers for Medicare and Medicaid
Services (CMS)
• G0396 and G0397 -- Alcohol and/or
substance (other than tobacco) abuse
...
Centers for Medicare and Medicaid
Services (CMS)
• G0444 -- Annual depression screening, 15
minutes
• G0445 -- High-intens...
Distant vs. Originating Sites
• Distant Site – where you are
• Originating Site – where your client/patient is
TMH CPT Code Modifiers
• - GT
• Most insurance carriers will only reimburse
“GT” coded services for telemental health
– So...
CMS Eligible Providers
• Physicians
• Nurse practitioners (NP)
• Physician assistants (PA)
• Nurse midwives
• Clinical nur...
More Information
Which "location of
service" category
gets reimbursed
most frequently?
Location of Service
• Speak with payer before billing
• Indicating the service was rendered in the
“home” is likely to lea...
What's a reasonable
fee to request for
telemental health?
Reasonable Fees
• Typically, fees for TMH are the same as in-
person
• For CMS, can add $24 per session for “facility
fees...
Are reimbursement
rates discipline-
specific in
telemental health?
Fees Across Disciplines
• Disparities exist across disciplines with
Medicare, Medicaid and 3rd Party Payers
– Psychiatry
–...
Are reimbursement
models relevant if I
have a self-pay
practice?
Self Pay
• Reimbursement Models are irrelevant
• Concierge services springing up
– “Self pay practitioners are the most li...
Which telemental
health practice
models get paid the
most?
TMH Practice Models
• Traditional hub-and-spoke models
• Servicing Health Care Shortage Areas (HPSAs)
Is telephone work
reimbursable under
new telemental
health
opportunities?
Telephone-based Models
• Dependent on state definitions of telehealth
• Contact your payer and ask how to bill for
telepho...
How is inter-state
practice relevant to
reimbursement?
Inter-state Practice & Reimbursement
• Most often, professional must be properly
licensed in the geographic location of th...
How is Health Care
Reform changing
the playing field for
reimbursement in
general?
Health Care Reform
• Most significant upheaval and reorganization
of US healthcare system we are likely to see in
our life...
How is private
industry and
consumer demand
impacting
telemental health?
Private Industry & Consumer Demand
• Non-healthcare companies coming into the
market with “disruptive technologies”
– Disr...
Disruptive Technology
Betty Friedan
• 1963 book The Feminine
Mystique
• Sought to have women be
accepted in existing world...
Private Industry & Consumer Demand
• Non-healthcare companies coming into the
market with “disruptive technologies”
– Goog...
Evidence-based Models
• Where might you earn a
legitimate income?
Schools
Children’s
Hospitals
Specialty Schools
& Services
• Special Needs
• Autism
• Residential Treatment
Centers
– Drug & Alcohol
– Other
Rural Hospitals
Rural Hospitals
Correctiona
Facilities
Nursing Homes
Home Health
Employers
Migration ModelMilitary & Veteran’s
Administration
Private
Companies
Serving
Consumers
Online*
• CopeToday
• MDLive
• SecureVideo
• VirtualTherapyConnect
• WeCounsel
* TMH I...
Migration Model
• Start with your current clients
• Select those who are reliable,
have good support systems
and with whom...
Professional Training
• Clinical Competencies
– Department of Defense
(DoD)
– Ohio Psychology Board
– Professional Associa...
ACES Technical Competencies
• Technical Competencies
For Counselor
Education:
Recommended
Guidelines For Program
Developme...
TeleSupervision
http://telehealth.org/ica
mHealth
OCPM: Online Clinical Practice Management
Today’s teens use
media an average
of:
• 10 hours and 45
minutes
• every day
• 7 days per week*
*Kaiser Family Foundation,...
Selecting Smartphone Apps
• Empirical support for
theory
• Empirical support for
app
• Utility
– User ratings
– Peer revie...
Future?
OCPM: Online Clinical Practice Management
Health & Behavioral Care in 20 Years
• Mobile devices and peripherals will
deliver most health and mental health
care
–Sen...
Health & Behavioral Care in 20 Years
• Mobile devices will be networked into central
database that will correlate all real...
Health & Behavioral Care in 20 Years
• Data will be complied into recommendations
that will deliver medications, foods oth...
Remote Monitoring Technologies
• Over the next 25 years, remote monitoring
technologies are projected to save nearly $200
...
Step 1: Training
Step 2: Referrals
Step 3: Patient Education
Step 4: Legalities
Step 5: Assessment
Step 6: Direct Care
Ste...
Learning Objectives
• 1. Describe 3 ethical dilemmas related to Skype,
Google and Facebook, blogging and the ethical codes...
Exercise: If we have
time…
OCPM: Online Clinical Practice Management
The American Red Cross reports that on average, “30 – 40 percent of
people who are direct victims of the disaster experien...
Distance Counseling Summary Exercise
Lac Megantic, Quebec
Photo by Simon Villeneuve used under Creative Commons license
July 6, 2013
Image printed in BBC News, US & Canada, July 10, 2013
Photo printed in BBC News, US & Canada, July 10, 2013
What if … you were the 3 year-old child witnessing this disaster?
What if …you were a five year old in this resort village?
What if you were a grade school child in this disaster?
What if … you were a teen in this disaster?
What if … you were parents of a young family in this disaster?
What if … you were an elderly person in a nursing home in this disaster?
What if you were waiting for fire fighters to find your missing loved one?
What if … you were a fire fighter in this disaster?
Levels of Security
Resources
2014
Get Expert Advice
• Consultation from topic
experts in telehealth
• Professional Training
• Also seek the aid of an
experi...
TMHI News http://telehealth.org/sign-up/
To Keep Up To Date
• TMHI faculty blog about these issues from a
mental health perspective as the news breaks
• Options:
–...
References
• Biba, E. (2005, February 17). Lost your cell phone? Call a cab! PC World.
Retrieved June 26, 2010 from
http:/...
References
• Connell, M., Drogin, E., Foote, W., & Sturm, C. (2010). The American
Psychological Association’s Revised “Rec...
References
• HIPAA, 45 CFR § 164.501.
• Ponemon, L. (2009). Fourth annual US cost of data breach study:
Benchmark study of...
References
• Office for Civil Rights, US Department of Health and Human Services.
Guidance on Risk Analysis. July 14, 2010...
Questions?
Marlene M. Maheu, Ph.D.
TeleMental Health Institute, Inc.
Phone: 619-255-2788
Email: mmaheu@telehealth.ORG
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Maheu+ica+2014+legal+&+ethical+strategies+for+successful+distance+counseling

  1. 1. Legal & Ethical Strategies for Successful Distance Counseling
  2. 2. Learning Objectives • 1. Describe 3 ethical dilemmas related to Skype, Google and Facebook, blogging and the ethical codes that help practitioners think through those dilemmas. • 2. Discuss the legal issues related to practicing over state lines or international borders, HIPAA and informed consent when practicing online. • 3. Outline 3 key elements of a risk management plan for working online with clients to deliver care.
  3. 3. Disclaimer • I am an MFT and clinical psychologist, not an attorney, physician or Information Technology specialist. The information I present is my best attempt to bring you timely and relevant information in a rapidly evolving area. I therefore make no warranty, guarantee, or representation as to the accuracy or sufficiency of the information contained in my training. • My goal is educational only. I seek to outline the issues and alert you to what's happening, including legal, ethical and other risk management issues. You are encouraged to seek specific advice related to your circumstance from your qualified authorities.
  4. 4. Housekeeping Schedule Restrooms Questions WiFi Twitter @ica
  5. 5. What’s going on? • Technology • Health Care Reform • Distance Counseling
  6. 6. Our planet is re-tooling as is psychology
  7. 7. Real-Time Telemedicine Patient in rural ER gets benefit of local care plus remote consultation with specialists. Remote doctor examines a patient’s inner ear from a remote location.
  8. 8. Distance Counseling & Other Services
  9. 9. December 2013
  10. 10. R O B O T I C S
  11. 11. Electronic Health Records
  12. 12. Step 1: Training Step 2: Referrals Step 3: Patient Education Step 4: Legalities Step 5: Assessment Step 6: Direct Care Step 7: Reimbursement OCPM: Online Clinical Practice Management
  13. 13. Telehealth vs. Distance Counseling (working model not to scale) Behavioral Telehealth Disciplines, including Distance Counseling, Training & Supervision Telehealth Health Professions Education Administration Evaluation Research Homeland SecurityPublic Health Consumer Education (and Self- management) Regional Health Information Sharing
  14. 14. What are the Current Models for Distance Services in Counseling and Other Disciplines?
  15. 15. Traditional Behavioral Telehealth Model
  16. 16. Traditional Behavioral Telehealth Model • Hub-and-spoke model – Only work with previously identified clients/patients who have had an in-person assessment – Detailed and documented referral requests – Detailed health record at fingertips of clinician – Client/patient is at the “originating site” – Clinician is at the “distant” site – Community collaborator is available • Client/patient is pre-trained by staff • Technology is stable – IT staff is available during entire time of connection to client/patient
  17. 17. Online Norm vs. Traditional Behavioral Telehealth (or Telemental Health) Traditional Online Therapy • Mostly Email & Chat • Anonymity • Accept self-referral online • Disclaim Responsibility w/ Website Disclaimers • No Clear Channels for Mandated Reporting • No Patient Records Traditional Behavioral Telehealth • Video • Verify clients/patients • Rely on referrals from clinical offices • Use informed consent processes/documentation • Engage in mandated reporting • Document as required by law 2014
  18. 18. Online Norm vs. Traditional Behavioral Telehealth (or Telemental Health) Traditional Online Therapy • No Contact with Other Treating Clinicians • No Authentication of Consumer / Professional • No Emergency Backup Procedures • Misunderstanding of Clinical Processes (suicide) • Scant Research for Unsupervised Settings Traditional Telemental Health • Obtain signed releases and collaborate • Verify identify of both Consumer and Professional • Establish emergency backup plan and personnel prior to delivering care 2014
  19. 19. What’s happening? OCPM: Online Clinical Practice Management
  20. 20. Disruptive Technology Disruptive technology is a term coined by Harvard Business School professor Clayton M. Christensen to describe a new technology that unexpectedly displaces an established technology. Betty Friedan • 1963 book The Feminine Mystique • Sought to have women be accepted in existing world Gloria Steinman • Sought to transform society
  21. 21. Society for Technology & Behavioral Health Innovation, Implementation & Consultation COMMUNICATION & COMMUNICATION NETWORKS (e.g., Internet, Blogging, Social media; Cybernetics [e.g., Biosensing/ Feedback]; Social networking) COMPUTING METHODOLOGIES (e.g., Artificial Intelligence; Natural Lang. Processing; Robotics; User Computer Interfaces [e.g., Computer Vision Tracking, Haptic Interfaces]; Computer Simulations [e.g., Virtual Human Agents/Avatars & Environments]; Microcomputers; 3D Imaging; Software [e.g., Video Games] HEALTH IT & INFORMATICS (e.g., Big Data; Controlled Vocabs [e.g., ICD-10]; Decision Making & Support; Data Mining; Electronic Health and Personal Health Records; Electronic Data Privacy, Security and Integrity; Health Information Exchange; HITECH; Information Storage & Retrieval; Interoperability TELECOMMUNCATIONS (e.g., Electronic Mail; Telepsychology; Remote Sensing; Wireless, & Training Technology; Telephones [e.g., Mobile Phones, mHealth, Messaging]; Video Conferencing; Interactive Voice Response) Practice Science Education Public Interest OTHER TECHNOLOGIES (e.g., Biotechnology, Nanotechnology, Nanomedicine)
  22. 22. Benefits of Traditional Video-Based Telehealth* • Increased client satisfaction • Decreased travel time • Decreased travel, child & elder-care costs • Increased access to underserved populations • Improved accessibility to specialists • Reduced emergency care costs • Faster decision-making time • Increased productivity / decreased lost wages • Improved operational efficiency • Maheu, Pulier, Wilhelm, McMenamin & Brown-Connolly. (2004). The mental health professional and the new technologies. Erlbaum, New York.
  23. 23. The Is Video Teleconferencing (VTC) Effective? • Yes – Medicare & Medicaid required to pay • Outcomes are relatively comparable, especially for follow-up care (intakes are still a matter of state law) • Literature for specialty groups is sparser, but positive (pediatrics) – Also effective for supervision – Can improve some ways service is rendered – See www.telehealth.ORG/bibliography • BUT, traditional VTC isn’t the same as Skype
  24. 24. Recent Supporting Research • Godleski, Darkins & Peters reported in April of 2012 that hospital utilization in psychiatric populations at the Veterans Administration were decreased by an average of 25% since the use of telehealth. It is worthy of note, however, that: – This study focused on clinic-based, high-speed videoconferencing and did not include any home telehealth encounters. Mental health patients were referred for telecare by clinicians. Typically, telemental health services were provided remotely at community-based outpatient clinics by mental health providers of all disciplines located at larger parent VA hospital facilities. Equipment consisted of either room or personal desktopvideoconferencing units transmitting at 384 kbps or greater. Godleski, L. Darkins, A. & Peters, J. Outcomes of 98,609 U.S. Department of Veterans Affairs patients enrolled in telemental health services, 2006–2010. Psychiatric Servcies, 63(4). 383-385.
  25. 25. Recent Supporting Research Backhaus and colleagues (May, 2012) reported in their abstract of a meta-analysis that: • 821 potential articles were identified, and 65 were selected for inclusion. • The results indicate that VCP is feasible, has been used in a variety of therapeutic formats and with diverse populations, is generally associated with good user satisfaction, and is found to have similar clinical outcomes to traditional face-to-face psychotherapy. – Videoconferencing psychotherapy: A systematic review. Backhaus, Autumn; Agha, Zia; Maglione, Melissa L.; Repp, Andrea; Ross, Bridgett; Zuest, Danielle; Rice-Thorp, Natalie M.; Lohr, James; Thorp, Steven R. Psychological Services, Vol 9(2), May 2012, 111-131. doi: 10.1037/a0027924
  26. 26. SYNCHRONOUS TELEHEALTH TECHNOLOGIES IN PSYCHOTHERAPY FOR DEPRESSION: A META-ANALYSIS Janyce E. Osenbach, Ph.D.,∗ Karen M. O’Brien, Ph.D., Matthew Mishkind, Ph.D., and Derek J. Smolenski, Ph.D., M.P.H. 2013 Meta-Analysis Comparing In-person and Synchronous Telehealth Modalities for Depression Published in DEPRESSION AND ANXIETY 00:1–10 (2013)
  27. 27. Primary Focus: Not the technology, but rather, the service we deliver (also allows for reimbursement) Nonetheless, Different Modalities Require Different Skill Sets • In-person • Text (email, chat, texting) • Audio • Video
  28. 28. Social Media
  29. 29. It is ethical to have a page on Facebook or a similar advertising page on Google+ ? 35
  30. 30. 9/21/2012 36
  31. 31. Social Media Is Not Private • “Anything you say, post, link to, comment on, upload, etc., can and may be used against you by your peers, colleagues, employer, potential employers, fellow members, and so on.” • APA http://www.apa.org/about/social-media-policy.aspx 37
  32. 32. OCPM Step 1: Professional’s Self Care • Boundaries – Office hours – Unplug • Reputation management • Community of like- minded pros 9/21/2012 38
  33. 33. All Existing Legal & Ethical Rules Apply
  34. 34. http://www.americantelemed.org/docs/default- source/standards/practice-guidelines-for-video-based-online- mental-health-services.pdf?sfvrsn=6
  35. 35. Boundaries of Competence 42 Multicultural Issues & Diversity
  36. 36. Multicultural /Multlingual Issues Issue • Global nature of the Internet – worldwide audiences • Multicultural issues are quite visible in the document, but English as a second language issue are not mentioned • Rarely mentioned anywhere How to measure? • Search online for various instruments that might be valid for your population • Look for English proficiency tests – Free – Easy to take – Get to know the norms • Spoken English is different from written English
  37. 37. In-Person Contact APA Telepsychology Guidelines: • In addition, psychologists may consider some initial in-person contact with the client/patient to facilitate an active discussion on these issues and/or conduct the initial assessment. p11
  38. 38. Do you see well enough? •Image Resolution • ATA Guidelines Are you conducting an intake or follow-up? • Most of the scientific literature described VTC as being used for follow-up care after a primary licensed professional does an intake. • How can you compensate for being able to assess glassy eyes, tremors, gait disturbance, sweaty palms, body odor, other signs of poor hygiene or serious mental illness when no local professional is available?
  39. 39. ACA Code of Ethics (2005) • A.12.c. Inappropriate Services – When technology-assisted distance counseling services are deemed inappropriate by the counselor or client, counselors consider delivering services face to face. –How do you decide what’s appropriate? Copyright 2012 TeleMental Health Institute, Inc. All rights reserved. 9/21/2012 46
  40. 40. ATA Patient Appropriateness for videoconferencing- based Telemental Health • To date, no studies have identified any patient subgroup that does not benefit from, or is harmed by, mental healthcare provided through remote videoconferencing. Recent large randomized controlled trials demonstrate effectiveness of telemental health with many smaller trials also supporting this conclusion. p9
  41. 41. Caution – Consider Context Online Norm vs. Standard of Care – No Contact with Other Treating Clinicians – No Authentication of Consumer / Professional – No Emergency Backup Procedures • Misunderstanding of Clinical Processes (suicide) • Operating w/o Needed Research for Unsupervised Settings
  42. 42. Caution – Consider Context Online Norm vs. Standard of Care • Mostly Email / Chat vs. Video • Anonymity / No Patient Records • Avoid Responsibility w/ Website Disclaimers • No Clear Channels for Mandated Reporting
  43. 43. TMHI Client & Patient Selection • Study the evidence base (research) • People with almost all diagnostic symptoms have been treated with traditional telehealth • Treatment to the home has not yet identified which groups are too risky • Understand differences between treatment of individuals in 1 setting vs, another (hospital vs. car, park, bed etc.) • Consider compliance problems 9/21/2012 50
  44. 44. Step 1: Training Step 2: Referrals Step 3: Patient Education Step 4: Legalities Step 5: Assessment Step 6: Direct Care Step 7: Reimbursement OCPM: Online Clinical Practice Management
  45. 45. Who is Responsible • …if you make a referral to a long-trusted colleague who suddenly conducts distance counseling with a client you referred? • …what if the client suddenly decompensates and makes a suicide attempt?
  46. 46. Know the Practices of Your Colleagues • Ask • Keep them informed of your practices and rationales • Suggest training when needed • Document training suggestions when appropriate
  47. 47. Step 1: Training Step 2: Referrals Step 3: Client Education Step 4: Legal Issues Step 5: Assessment Step 6: Direct Care Step 7: Reimbursement
  48. 48. Technical Issues • Discuss the technical requirements with the patient prior to initiating treatment • Consider the level of technology experience of the patient (train if needed) • Have a back-up plan if the video connection is lost – telephone -- landlines are best, but cell phones are better than nothing
  49. 49. Tech Check • Tech check – review potential technology and infrastructure issues prior to initiating the delivery of care – adequacy of bandwidth (the rate of data transfer) – reliability of telehealth equipment (computers, monitors, video cameras, audio equipment, etc.). – loss of connection due to inadequate transmission bandwidth or other equipment failure during a clinical crisis situation – insufficient camera resolution or environmental problems (adequacy of room lighting and microphone placement)
  50. 50. Explain technical aspects (camera position, lighting , audio, noise, clock, etc.)
  51. 51. What are the types of problems that clients / patients have reported when working with clinicians using videoconferencing?
  52. 52. Client/Patient Training • Email /Texting/Telephone/Video • Social networking – social media policy • File exchange • Computer repair • Clinical records • Insurance • Reports • Lateness / Missed sessions • Non-compliance/Avoidance
  53. 53. Clinicians have been reported: • Eating • Taking personal cell phone calls from family • Burping without excusing themselves • Picking teeth • Combing hair • Rocking incessantly in their seats • Putting feet on the desk • Taking a shirt off • Mindlessly tapping the desk with objects • Being half way off the screen
  54. 54. What should I do when someone enters a client's / patient's room during a call?
  55. 55. If someone enters the client/patient room: • What would you do in your brick-and-mortar practice? – Stop the session / resume control of the interaction – Ask the client/patient to speak privately with you • Obtain permission to continue • Ask for an agenda • Reschedule for another day/time
  56. 56. What should I do when someone enters my room during a call?
  57. 57. If someone enters your room: • What would you do in your brick-and-mortar practice? – Stop the session / resume control of the interaction – Excuse yourself if it is an emergency and step out of the room – Reschedule for another day/time
  58. 58. Why use initial protocols when videoconferencing?
  59. 59. Initial Protocols Educate client/patient about the need for routine opening protocols that might include: • Your name and location, name of clinic, hospital, agency ? • Client/patient name and location ? – direct phone number for emergency services of today’s location (tested?) • Reason for meeting ? • If anyone else is in the room or within earshot ? • Are children cared for ? • Any expected interruptions ? • Door locked? • Room scan? – Scan your room with your camera and ask patient to do the same • Anything else of note with your population?
  60. 60. Can I get paid for the time used in helping a client / patient set up and manage their equipment?
  61. 61. Paid Tech-Time? • No payment for client/patient set-up time • “Facility fees” are available on a per-session basis for Medicare and Medicaid services that are reimbursable – See: Reimbursement Strategies Increasing Authorization and Payment (3 CEs/CMEs)
  62. 62. How do I handle technical issues created by my video teleconferencing (VTC) system during a call?
  63. 63. Tech Problems During a Call • Practice before you work with clients/patients • Relax – trust your training • Have an agreement with your client/patient that you will call each other using a designated telephone number • Always have that phone number on hand when you conduct a session • Have an agreement about who will call the other
  64. 64. What is a community champion and when is it appropriate to use one?
  65. 65. Community Champion • Local collaborator can be helpful for: – providing information about the patient’s history – monitoring mood and behavior – assisting with treatment planning and coordination – coordination with local 911 service when needed – provide an additional mechanism for contacting patients if a connection becomes lost – provide on-site technical assistance – provide support to a patient during emergency situations
  66. 66. Community Champion • Educate your client/patient about use of a local collaborator such as a family member or close friend – Enter name and contact information into informed consent document – Stipulate under which conditions these people will be contacted – Outline emergency procedures and when collaborator will be notified – Clearly define expected roles and responsibilities of local collaborators/champions – Encourage your client/patient to discuss their choice of champions directly, before you contact them
  67. 67. What are the must-dos for community champions and informed consent to minimize my risks?
  68. 68. Community Champion • Assess when using a local collaborator may not be advisable: – Safety of local collaborators must be carefully considered – may be best to rely on trained 911 responders – Be cognizant of potential deleterious effect of disclosures made during emergency management on patient confidentiality and relationships, especially in small communities
  69. 69. Step 1: Training Step 2: Referrals Step 3: Client Education Step 4: Legal Issues Step 5: Assessment Step 6: Direct Care Step 7: Reimbursement
  70. 70. Dr. Trow vs. Oklahoma Medical Board • Relevant law • The case • Skype • Lessons to be learned
  71. 71. Full style: State of Oklahoma ex rel. Oklahoma Board of Medical Licensure and Supervision v. Thomas Edward Trow, M.D., License No. 10255, case No. 11-11- 4439 (Sept. 12, 2013)
  72. 72. "Physician/patient relationship” in OK • “…a relationship established when a physician agrees by direct or indirect contact with a patient to diagnose or treat any condition, illness or disability presented by a patient to that physician, whether or not such a presenting complaint is considered a disease by the general medical community. The physician/patient relationship shall include a medically appropriate, timely-scheduled, actual face-to-face encounter with the patient, subject to any supervisory responsibilities established elsewhere in these rules.” (emphasis added) – OAC 435:10-1-4 – Does not say: “in person”
  73. 73. IC: OK Telemedicine Act, OAC §36‐6804 • A. Prior to the delivery of health care via telemedicine, the HCP who is in physical contact with the pt shall have the ultimate authority over the care of the pt and shall obtain IC from the pt. The IC procedure shall ensure that, at least, all the following info is given to the pt: • 1. A statement that the individual retains the option to withhold or withdraw consent at any time without affecting the right to future care or treatment or risking the loss or withdrawal of any program benefits to which the individual would otherwise be entitled (emphasis added)
  74. 74. IC: OAC §36‐6804, 2 • 2. A description of the potential risks, consequences, and benefits of telemedicine; • 3. A statement that all existing confidentiality protections apply; • 4. A statement that pt access to all medical info transmitted during a telemedicine interaction is guaranteed, and that copies of this info are available at stated costs, which shall not exceed the direct cost of providing the copies; and • 5. A statement that dissemination to researchers or other entities or persons external to the patient- practitioner relationship of any patient‐identifiable images or other patient‐identifiable information from the telemedicine interaction shall not occur without the written consent of the patient (emphases added)
  75. 75. IC: OAC §36‐6804, 3 • B. The pt shall sign a written statement prior to the delivery of health care via telemedicine indicating that the pt understands the written info provided pursuant to subsection A of this section and that this info has been discussed with the HCP or [his] designee. • C. If the pt is a minor or is incapacitated or mentally incompetent such that the pt is unable to give informed consent, the consent provisions of this section shall apply to the pt’s rep. The consent provisions of this section shall not apply in an emergency situation in which a pt is unable to give IC and the pt's rep is unavailable… (emphases added)
  76. 76. IC: OAC §36‐6804, 4 • For purposes of the delivery of mental health care via telemedicine, the use of telemedicine shall be considered a face‐to‐face, physical contact and in‐person encounter between the health care provider and the patient, including the initial visit. – Services provided by the Mental Health Dept.: initial evaluation may be virtual – Mental health services provided by others: initial evaluation must be in-person – Other forms of health care: initial evaluation must be in- person
  77. 77. Telemedicine for Mental Health (OK 2008 Policy) • Telemedicine technology is limited to consultations, psychotherapy, psychiatric diagnostic interview examinations and testing, discharge planning and pharmacologic management. An interactive telecommunications system is required as a condition of the use of telemedicine. • The following shall not be considered telemedicine: • (1) Phone conversation (including text messaging) • (2) Electronic mail message • (3) Facsimile (fax) • (4) Store and forward
  78. 78. Telemedicine for Mental Health (OK 2008 Policy), 2 • The telemedicine equipment and transmission speed must be technically sufficient to support the service provided. If a peripheral diagnostic scope is required to assess the patient, it must provide adequate resolution and audio quality for decision making substantially equivalent to a face‐to‐face encounter. Staff involved in the telemedicine visit need to be trained in the use of the telemedicine equipment and competent in its operation. (emphasis added)
  79. 79. Telemedicine for Mental Health (OK 2008 Policy), 3 • The physician who has the ultimate responsibility for the care of the patient must obtain written consent from the patient, in accordance with state law, that states they agree to participate in telemedicine. The consent form must include a description of the risks, benefits and consequences of telemedicine and be included in the patientʹs medical record • … • Physicians providing mental health care services via telemedicine shall be held to the same standards of care as required in the medical community. – Emphasis added
  80. 80. Trow: OSBMLS Telemedicine Guidelines • Ok. medical practice act requires initial in-person visit before MD can prescribe Rx – Exceptions: • Emergencies • DOs • Interactive telecommunications system required – TM network standards: all technical, confidentiality requirements under state and federal law • Permissible telemedicine functions: – Consultations – Psychotherapy – Psychiatric diagnostic interview exams and testing – Discharge planning – Pharmacologic management • NOT TM: phone, email, fax, store-and-forward
  81. 81. Trow: Stipulated Facts • Dr. Trow is an unemployed 65 yo pain management physician • Orthopedic problems make travel difficult for him – Used mail, fax, and phone from home • RN often served as telepresenter at clinics – Records kept there but not, as Oklahoma telemedicine guidelines require, at Trow’s home office • 10/20/11: DO reported 3 pts getting large doses of Xanax • 11/8/11: TL, daughter of deceased, addicted, 62 yo pt RC, complained Dr. Trow prescribed CDS for RC – RC died of HBP and COPD • No toxicology studies
  82. 82. Stipulated Facts, 2 • 8/17/12 Ok. HC Authority (“OHCA”) letter: – No contract with OHCA – Using unapproved equipment – No informed consent – Inability to produce 2 of 10 requested charts – Overprescribing CDS – Limited documentation; no physical exam – Verbal orders not countersigned • 3/13/13: OHCA reported D was – 1) seeing Sooner Care patients via Skype and – 2) writing for controlled substances without an in-person evaluation • OHCA “is the primary entity in the state of Oklahoma charged with controlling costs of state-purchased health care.” – SoonerCare: Oklahoma Medicaid
  83. 83. Stipulated Facts, 3 • Dr. Trow caused NO patient deaths • Dr. Trow billed OHCA for Skype services; not an approved telemedicine modality • Trow did not see all pts, even by Skype. • 11/9/12: OHCA letter #2: similar to 1; more detailed – No initial contact with patients – Inadequate records – HIPAA violations – Inadequate supervision of nurses – Failing to heed drug screen results – VOs • 11/15/12: OHCA terminated SoonerCare
  84. 84. Procedural Posture • Disciplinary matter, not a private (malpractice) claim – ?Possible in future? • Defendant pled guilty – Waived right to full hearing • D admitted violating OHCA telemedicine guidelines: improper equipment; no proper contracts – Stated he thought those duties fell to his employer
  85. 85. Conclusions of Law: Unprofessional Conduct • Dishonorable conduct likely to deceive or harm public • Prescribing without – Proper doctor-patient relationship; – Adequate PE • Overprescribing controlled substances – No documentation of medical need • Inadequate records
  86. 86. Consequences • License suspended • MD to take prescribing course • No CDS prescribing until – 1. Course completed – 2. Dr. Trow meets with Board Secretary • MD is on probation • Reported to National Practitioner Data Bank
  87. 87. New Ok Definition: “Face-to-Face Encounter” by TM • “It is the position of the OSBMLS that the face- to-face encounter required by OAC 435:10-1- 4…to establish a physician/patient relationship includes real-time telemedicine encounters with audio and video capability…[T]o qualify as a face- to-face encounter set out in this definition, the telemedicine audio and video capability must meet those elements required by CMS.” OSBMLS, 9/25/13, – http://www.okmedicalboard.org/download/705/Tele medicine_PositionStatement.pdf
  88. 88. Oklahoma Law is In Flux • November 7, 2013: Board held a public forum to discuss the use of telemedicine in Oklahoma • Then, public comment – First public comment period ran overtime; a special session may be needed to complete the process • Then: legislature • Finally, Governor’s office
  89. 89. What are the take- home lessons from the Trow case?
  90. 90. Take-Home Lessons • Case reflects Oklahoma law only – But Oklahoma is relatively telemedicine-friendly (“SoonerCare views telemedicine no differently than an office visit or outpatient consultation..” OHCA Policies and Rules, 317:30-3-27, revised 7/1/13) – Other states could do the same or worse • Tort liability presumably remains possible – Though wrongful death claims might be problematic – Is Dr. Trow insured against this risk? • Determine what establishing the physician-patient relationship requires in the relevant jurisdiction – Is a virtual visit adequate? • Be sure to perform the type of initial contact required by your state law for distance counseling
  91. 91. Take-Home Lessons (Cont.) • Obtain and document informed consent – In Oklahoma, must be in writing – Check your state’s laws • Maintain proper records • Board’s main focus was on excessive prescribing, not Skype per se – Does Oklahoma forbid Skype for telemental health services? • Nevertheless: Use Skype with caution, if at all – No claim of HIPAA compliance • Be especially cautious with controlled substances – Potentially acceptable: hospice
  92. 92. FSMB, as of 8/12 • 10 state boards issue a special purpose license, telemedicine license or certificate, or license to practice medicine across state lines • 57 boards + DC Board require that TM physicians be licensed in the state in which the patient is located • Minnesota allows physicians to practice TM if they are registered to practice TM or are registered to practice across state lines – http://www.fsmb.org/pdf/grpol_telemedicine_licensure.p df. •
  93. 93. Full Discussion • The previous slides were from a webinar given 1/20/2014 through the TeleMental Health Institute. • Guest speaker for that webinar and author of many of the previous set of slides is Joseph McMenamin, MD, JD, McMenamin Law Offices, Richmond Virginia
  94. 94. Specific Informed Consent Processes and Documentation
  95. 95. ACA Code of Ethics (2005) A.12.a. Benefits and Limitations • Counselors inform clients of the benefits and limitations of using information technology applications in the counseling process and in business/ billing procedures. • Such technologies include, but are not limited to, computer hardware and software, telephones, the World Wide Web, the Internet, online assessment instruments and other communication devices.
  96. 96. ACA Code of Ethics (2005) A.12.g. Technology and Informed Consent • As part of the process of establishing informed consent, counselors do the following: – 1. Address issues related to the difficulty of maintaining the confidentiality of electronically transmitted communications. – 2. Inform clients of all colleagues, supervisors, and employees, such as Informational Technology (IT) administrators, who might have authorized or unauthorized access to electronic transmissions.
  97. 97. Verify with a Local Telehealth Attorney • Use next suggestions, but I am not an attorney. • Develop your document and verify with your own informed, local attorney • Be aware that many association attorneys may not be yet adequately well-versed in telehealth issues • A good expert should cost you from $500 - $800 to review your agreement
  98. 98. Informed Consent • Represents a “meeting of the minds” – Information is influenced by many factors, including • Client/Patient’s capacity for absorbing information • Time limits • Clinician’s schedule – Subject matter is often complex and technical – Clinician thinks she is speaking English – Client/Patient may be under stress (or may assert so later) – Mental illness • Document only serves as important evidence
  99. 99. Informed Consent: Function of State Law • Specific statutes govern informed consent in telehealth • Who’s state law controls? • Solution: assume that the law of the client/patient residence will most likely be applied • More conservative approach is to determine the law in both your and your client/patient’s state and follow the mandates of the more stringent law
  100. 100. TMHI Informed Consent Documentation Basics • Date • Diagnosis • Outline of intervention • Risks and benefits of each technology used • Risks and benefits of competing approaches • Including no service
  101. 101. TMHI Informed Consent Documentation Basics • Emergency Resources and Plan including names and contact information for local, trusted person(s) to be contacted at the discretion of the clinician • Document advantages and disadvantages of using technology • Document evidence-base supporting counseling plan • Document client preferences re: technology
  102. 102. TMHI Informed Consent Documentation Basics • Confidentiality and limits thereof as related to mandated reporting (suicide, homicide, abuse) • Fees, if any • Statements* similar to: • My questions have been answered to my satisfaction in language I understand • As of the time of my signing, all blanks have been filled in • Document method & procedures for data storage • Document adherence to local and distant regulations * Obtain full legal review with a local telehealth attorney prior to using any TMHI sample wording with clients either verbally or in in your informed consent document.
  103. 103. TMHI Informed Consent Documentation Basics • Some risks may not yet be unknown* • No physical exam* • Identify both the clinician’s & client’s/patient’s physical location • Statements* such as: Professional will rely on information provided by the client/patient and by any on-site practitioners or other sources • Potential problems could arise with electronic transmission in telepractice: • distortion, delays, interceptions, interruptions • Document all communications with client (written, audio, video or verbal) * Obtain full legal review with a local telehealth attorney prior to using any TMHI sample wording with clients either verbally or in in your informed consent document.
  104. 104. TMHI Informed Consent Documentation Basics • Discuss the purpose of remote contact • Inform clients of who will have access to their email address, phone number, or any other contact information • Inform the client of who else might contact the client on your behalf • Discuss multi-cultural and diversity issues
  105. 105. TMHI Informed Consent Documentation Basics • Describe the specific roles of any consultant or local referring practitioner and who will have ultimate authority over the client’s treatment • Discuss whether client information will be stored in a computerized database • Provide written procedures for various types of follow-up when client does not appear for remote consultation – Time limit for non-response before collateral person will be contacted if professional is concerned
  106. 106. TMHI Informed Consent Documentation Basics • Describe how deficiencies electronic equipment could possibly cause interference with diagnosis or treatment • Make provision for non-receipt of email, delayed receipt, problems with servers, or unannounced changes in the schedule of email communications • Mention how easily human error could lead to incorrectly delivered messages or other unforeseen events
  107. 107. TMHI Informed Consent Documentation Basics • Document technical requirements with the client prior to initiating treatment • Document preferences and level of technology experience of the client (train if needed) • Agree upon alternatives if video or audio connections are lost – telephone -- landlines are best, but cell phones are better than nothing
  108. 108. Emergencies Have a plan. • Discuss carefully • Write plan in your informed consent document • Develop prior relationships with local community: – Physician – Family – School personnel – Other leaders (AA, religious?) – Emergency response team – Know community resources (hospitals, drug/alcohol treatment facilities, etc.) – Know your local collaborators Know who and when to call for local assistance. • Inform client of when you will contact local leaders, what you will tell them. • Cover your termination procedure ( i.e., “I will make 2 telephone calls, leave you 2 messages, send you a letter in surface mail with a copy to your physician.”)
  109. 109. NBCC: Standards For Distance Professional Services • NCCs shall carefully adhere to legal regulations before providing distance services. This review shall include legal regulations from the state in which the counselor is located as well as those from the recipient’s location. • Given that NCCs may be offering distance services to individuals in different states at any one time, the NCC shall document relevant state regulations in the respective record(s).
  110. 110. NBCC: Standards For Distance Professional Services • Boundaries of competence – NCCs shall provide only those services for which they are qualified by education and experience. NCCs shall also consider their qualifications to offer such service via distance means. – Are counselors competent to deliver traditional service in technical environments? Technical and clinical training may be needed.
  111. 111. Privacy, Confidentiality, Diversity • Privacy & Confidentiality – Understand your technology (email, texting, video) and its clinical repercussions related to privacy and technology • Diversity – Multi-cultural, multi- lingual, religious, LGBT, and other issues
  112. 112. Service to the “Home” • Scientific evidence base for contact to the home is much thinner, less reliable than traditional telehealth • Risk management is a serious concern • Likelihood of lurkers, intruders or interruptions is increased • Develop signs, code words or phrases to signal something is amiss
  113. 113. TMHI Clinical Competence Client Selection • Study the evidence base (research) • People with almost all diagnostic symptoms have been documented as successfully treated with traditional telehealth • Clients experiencing severe anxiety, flagrantly psychotic symptoms or suicide/homicide intent may not be optimal choices while symptom patterns are exacerbated
  114. 114. TMHI Clinical Competence Client Selection • Most of the studies mentioned above include the assistance of a local collaborator • Treatment to the home has not yet identified full range of risk • Understand differences when delivering care to clients in different settings (hospital vs. car, park, bed etc.) • Establish procedures to minimize attendance & compliance issues
  115. 115. Levels of Security Interjurisdictional Licensure Issues 2014
  116. 116. 20/20: A Vision for the Future of Counseling 4) Creating a portability system for licensure will benefit counselors and strengthen the counseling profession.
  117. 117. Inter-jurisdictional Practice Licensing Boards that may assert jurisdiction: • The one in the professional’s state(s) of licensure • The one in the client/client’s state of location at time of call • Both Safest Practice: • Provide services only where licensed • Require client to attest to his or her location on every call2014
  118. 118. Inter-jurisdictional Practice (cont.) Special telehealth and in many cases, “telemedicine” laws have led the way • Prescription-writing initiatives led to development of laws in the 90’s • Reimbursement practices for Medicare 7 Medicaid • 32 states now mandate in-person assessment prior to distance contact • Special informed consent laws also rapidly evolving • Regulatory Case • Oklahoma case of Dr. Trow • No in-person assessment • No informed consent • No HIPAA-compliant technology (he used Skype)2014
  119. 119. Licensure Requirements for Professional Counselors – 2014 What’s New for 2014 (page 4)
  120. 120. Licensure Requirements for Professional Counselors – 2014 What’s New for 2014 (page 4)
  121. 121. Special Telehealth Licenses or Certificates Licenses could allow an out of state provider to render services via technology in a foreign state, or it allows a clinician to provide services via telehealth into a state if certain conditions are met (such as agreeing that they will not open an office in that state.) http://www.fsmb.org/pdf/grpol_telemedicine_licen sure.pdf
  122. 122. States with Laws Mandating Private Insurance Coverage of Telemedicine
  123. 123. Special Telehealth Licenses or Certificates • Alabama • Louisiana • Minnesota • Montana • Nevada http://www.fsmb.org/pdf/grpol_telemedicine _licensure.pdf • New Mexico • Ohio • Oregon • Tennessee • Texas
  124. 124. Innovative Models • National Council of State Boards of Nursing (NCSB) • Federation of State Medical Boards (FSMB) • Association of State and Provincial Psychology Boards (ASPPB)
  125. 125. Levels of Security Licensure Portability Legislation 2014
  126. 126. 2010
  127. 127. TELEmedicine for MEDicare Act, 2013 • HR 3077, the “TELE-MED Act” was introduced Sept. 10 in the House by Reps. Devin Nunes, R-Calif., and Frank Pallone, D-N.J. Nicknamed the TELE-MED Act, seeks to update current licensure laws for Medicare beneficiaries, the number of whom is expected to rise to 81 million by 2030
  128. 128. TELEmedicine for MEDicare Act, 2013 • In the case of a Medicare participating physician or practitioner who is licensed or otherwise legally authorized to provide a health care service in a State, such physician or practitioner may provide such a service as a telemedicine service to a Medicare beneficiary who is in a different State, and any requirement that such physician or practitioner obtain a comparable license or other comparable legal authorization from such different State with respect to the provision of such health care service by such physician or practitioner to such beneficiary shall not apply. • If passed, the bill will give licensing or authorizing states enforcement powers and require the Secretary of the Department of Health & Human Services to solicit input from “relevant stakeholders” in order to provide telemedicine guidance for states.
  129. 129. Legal Suggestions • Counsel each other & document those conversations • Communicate often to your local, state and national professional associations – let them know what you need • Put information in writing • Write to your malpractice carrier and describe your proposed service before investing too much time or $$ • Check with an informed, local attorney who specializes in telehealth to verify that all aspects of your telepractice are in compliance with state law
  130. 130. Other Legal & Ethical Issues for Distance Counseling
  131. 131. Duty to Report / Duty to Warn • (v) Failing to comply with the child abuse reporting requirements of Section 11166 of the Penal Code. • (w) Failing to comply with the elder and adult dependent abuse reporting requirements of Section 15630 of the Welfare and Institutions Code. CA Business and Professions Code Sections 4989.54 (cont.)
  132. 132. Practical Application: Check on Technology • Tech check – review potential technology and infrastructure issues prior to initiating the delivery of care – bandwidth (the rate of data transfer) – reliability of equipment (computers, monitors, video cameras, audio equipment, etc.). – loss of connection due to inadequate transmission bandwidth or other equipment failure during a clinical crisis situation – insufficient camera resolution or environmental problems (adequacy of room lighting and microphone placement)
  133. 133. Opening Protocol* • Identify yourself and your geographic location • Ask your client/patient to do the same • Audio/video check (e.g., Do you hear & see me clearly?) • Is there anyone in your room or within ear-shot today? (Agree on safety code words, signals or phrases) • Is there anything else I might notice and find of interest if I were in the same room with you today? • Has there been an emergency in your environment today? • Is there anything else I should know about before we begin talking today? * Obtain full legal review with a local telehealth attorney prior to using any TMHI sample wording with clients either verbally or in in your informed consent document.
  134. 134. Local Collaborators or Champions
  135. 135. Mention Other Safety Issues • Have an addendum to your informed consent document – Include social media policy statements* that fit your client population, such as: – I will not “friend” you on Facebook or other social media sites – I will not respond to you on sites such as Yelp * Obtain full legal review with a local telehealth attorney prior to using any TMHI sample wording with clients either verbally or in in your informed consent document.
  136. 136. Safety Issues to Consider • Is there access to firearms in home-based care? • Discuss firearm ownership, safety, and the culture of firearms • Be prepared to negotiate firearm disposition with patients and consider involvement of family members when appropriate • Use of trigger safety lock devices is an option
  137. 137. Safety Issues to Consider • Assess potential technology and infrastructure issues prior to initiating the delivery of care – adequacy of bandwidth (the rate of data transfer) – reliability of telehealth equipment (computers, monitors, video cameras, audio equipment, etc.). – loss of connection due to inadequate transmission bandwidth or other equipment failure during a clinical crisis situation – insufficient camera resolution or environmental problems (adequacy of room lighting and microphone placement)
  138. 138. Safety Issues to Consider • Identify and use of a local collaborator such as a family member or close friend of a patient – Enter name and contact information into informed consent document – Stipulate under which conditions these people will be contacted – Outline emergency procedures and when collaborator will be notified – Clearly define expected roles and responsibilities of local collaborators – Consider discussing these issues with family members directly
  139. 139. Safety Issues to Consider • Local collaborator can be helpful for: – providing information about the patient’s history – monitoring mood and behavior – assisting with treatment planning and coordination – coordination with local 911 service when needed – provide an additional mechanism for contacting patients if a connection becomes lost – provide on-site technical assistance – provide support to a patient during emergency situations
  140. 140. Safety Issues to Consider • Assess when using a local collaborator may not be advisable: – Safety of local collaborators must be carefully considered – may be best to rely on trained 911 responders – Be cognizant of potential deleterious effect of disclosures made during emergency management on patient confidentiality and relationships, especially in small communities
  141. 141. Safety Issues to Consider • Discuss the technical requirements with the patient prior to initiating treatment • Consider the level of technology experience of the patient (train if needed) • Have a back-up plan if the video connection is lost – telephone -- landlines are best, but cell phones are better than nothing
  142. 142. Intake Summary • Explain & sign informed consent document • Conduct a formal intake – no shortcuts • Meet in-person or video, identify geographic location, organizational culture, take full history, medications and medical conditions, mental status and stability, use of substances stressors, treatment history, support system, use of other technology, suicide/homicide intent • Identify psychological diagnosis • Decide if, then which technology is appropriate / Assess technical competence / ability to arrange appropriate setting • Obtain names of all other key providers, get appropriate releases • Verify contact information (address, phone, email) • Have emergency plan in writing
  143. 143. Telemental Health: HIPAA, HITECH & Your State Law OCPM: Online Clinical Practice Management
  144. 144. HIPAA • Three Rules: – Transmission – Privacy – Security Three HIPAA Rules: • Transmission • Privacy • Security
  145. 145. HIPAA Privacy Rule • Data are “individually identifiable” if they include any of the 18 types of identifiers, listed below, for an individual or for the individual’s employer or family member, or if the provider or researcher is aware that the information could be used, either alone or in combination with other information, to identify an individual:
  146. 146. HIPAA Privacy Rule (cont.) 1. Name 2. Address (all geographic subdivisions smaller than state, including street address, city, county, zip code) 3. All elements (except years) of dates related to an individual (including birth date, admission date, discharge date, date of death and exact age if over 89) 4. Telephone numbers 5. Fax number 6. Email address 7. Social Security number 8. Medical record number 9. Health plan beneficiary number 10. Account number 11. Certificate/license number 12. Any vehicle or other device serial number 13. Device identifiers or serial numbers 14. Web URL 15. Internet Protocol (IP) address numbers 16. Finger or voice prints 17. Photographic images 18. Any other characteristic that could uniquely identify the individual
  147. 147. Email • A 2009 study by the American Psychological Association showed that 9.8% of psychologists polled reported using email for clinical purposes with clients (Jacobsen & Kohout).* • Is such use appropriate without training? • * Jacobsen, T. & Kohout, J. (2010). 2008 APA Survey of Psychology Health Service Providers: Telepsychology, Medication and Collaboration. APA Center for Workforce Studies.
  148. 148. Email • HIPPA Omnibus Act allows us to have email contact without meeting usual HIPAA standards when risks are fully disclosed in • Be aware of inherent problems with soliciting email contact from websites and directories.
  149. 149. The HIPAA Compliant Email Companies
  150. 150. Current Surveys The Professional survey: ttp://tinyurl.com/kpnfh75 The Consumer survey: http://tinyurl.com/mb86oav Research team includes: Drs. Marlene Maheu,. Robert Glueckauf, Ken Drude, Eve-Lynn Nelson
  151. 151. Skype?
  152. 152. Skype’s Most Recent Hacking – November 2012
  153. 153. Is Skype Reliable? Skype tiles & pixelates, the audio gets tinny, echoes develop, and often calls drop entirely. Sometimes consumers can see you and hear you, without your awareness.
  154. 154. HIPAA requires an “audit trail.” Skype doesn‘t provide audit trails – and isn’t obligated to ….
  155. 155. Skype’s Privacy Policy • Skype may gather and use info about you… – Identification data (e.g. name, username, address, telephone number, mobile number, email address) – Electronic identification data (e.g. IP addresses, cookies) – List of your contacts and related data – Content of instant messaging communications, VMs, video messages • Skype uses its own cookies for a variety of purposes, including to – Provide internal and customer analytics and gain statistics and metrics about our websites • Skype’s analytics, ad-serving and affiliate partners may also set and access cookies on your computer • Skype will take appropriate organizational and technical measures to protect the personal data and traffic data provided to it or collected by it with due observance of the applicable obligations and exceptions under the relevant legislation
  156. 156. Skype and Health Privacy • AES 265-bit encryption • Free • Access to patient’s environment BUT • Skype makes no claim that its services can be used in a HIPAA-compliant fashion • Skype does not offer a BA Agreement • Cannot verify transmission security • No audit trails • No breach notifications • No offer of technical support • Frequently dropped calls – Emergencies?
  157. 157. OCPM Step 3 Legal Issues: Which Technologies to Use? • No Guesswork Needed
  158. 158. Internet-based, VTC Companies Claiming HIPAA Compliance* • Access Psychiatry • Adobe Connect • Behavior Imaging Solutions • CopeToday • Consult a Doctor • Counsol.com • EasyShare VC • eCounseling • E Mental Health Center • Forefront Telecare • GEMS • GoToMeeting • iCouch • Interactive Care • iTel • IVE (cloud) • Lifesize (Logitech) • MDLive • MyTherapyNet • Revation • Secure Telehealth • SecureVideo.com (FREE) • Shepell fgi • Smart House Calls • Soltrite • Via3 • VisHealth (Visual Telehealth) • Vsee (FREE) • VirtualTherapyConnect • WeCounsel * TMH Institute has partnered with some of these companies and will receive a referral fee if you mention TMHI. You may also get an added discount.
  159. 159. What makes you a “covered entity”?
  160. 160. • Use HIPAA compliant technologies and develop written processes – Document policies • Security & privacy policies – Repairs – Staff training – Breach notification, etc. HIPAA Policies
  161. 161. HIPAA “Final Rule” January 17, 2013 • Business associates of covered entities are directly liable for compliance with HIPAA Privacy and Security Rules’ requirements. Includes contractors, subcontractors and business service companies working for health care providers, (e.g., companies providing electronic health records software, teleconferencing, data back-up and storage, billing, transcription and other IT services). • Raises the maximum penalty for data breaches from a previous cap of $250,000 to a maximum penalty is $1.5 million per violation.
  162. 162. HIPAA “Final Rule” • Infrastructure, documentation, and procedures for information privacy and security, and data encryption and disposal will have to be evaluated and brought into compliance. • Companies need to provide formal security training to all employees, designate a security official and implement appropriate business associate contracts with their own subcontractors.
  163. 163. HIPAA “Final Rule” • When HIPAA was first passed in 1996, most health care practitioners, hospitals and insurance companies scurried to bring themselves into compliance with the new standards. In the face of these final rules, business associates will have to engage in the same process. • HHS is stepping up enforcement efforts. • See Federal Register available online at http://federalregister.gov/a/2013-01073, and on FDsys.gov
  164. 164. Copyright 2012 TeleMental Health Institute, Inc. All rights reserved. • All Business Associates in health care must sign an agreement stating their adherence to HIPAA standards • Transactions • Security • Privacy • True for any service you hire • It is now enforced by the HITECH ACT HIPAA, Business Associates & HITECH
  165. 165. HITECH • If aware of a potential breach of protected health information: – Conduct risk assessment – Mitigate breaches – report them to affected clients, the federal government, and in some cases, the media
  166. 166. HITECH Implement or update privacy and security policies and procedures: • Need policies to be written (a paragraph is ok) • Staff education • Breach procedures – Consult your attorney – 500 or more records  notify media
  167. 167. HITECH Do not disclose treatment information to your client’s health insurance carrier for they have paid out-of- pocket, unless the disclosure is required by law
  168. 168. HITECH • Clients may ask for copies of their electronic health records in electronic form. • For example, you cannot make a unilateral decision to download and print electronic records and send the printed version to a client who requests them.
  169. 169. HITECH Email • Send PHI in unencrypted e- mail only if the client is advised of the risk and still requests use of email as a means of transmission
  170. 170. What are risks of sending unencrypted email?
  171. 171. HITECH • There are additional new restrictions on marketing and sale of PHI, which should be included in counselors’ HIPAA policies and procedures and Notice of Privacy Practices if relevant.
  172. 172. HITECH Update your Notice of Privacy Practices: • OCR and the Office of the National Coordinator for Health Information Technology released a Model Notice of Privacy Practices, get it here: http://www.hhs.gov/ocr/priv acy/hipaa/modelnotices.html
  173. 173. HITECH NPP • Make available to existing clients on request • Post on your website • Display in a prominent location in your professional premises • Provide copy to all new clients
  174. 174. HITECH Update Business Association Agreements (BAAs) • Contractors & subcontractors – Billing – Data storage
  175. 175. HITECH • Many states have their own privacy laws, which can be more stringent than federal law HIPAA & HITECH. • Consider obtaining a legal review of your HIPAA policies, procedures and other documents by your local attorney.
  176. 176. Where can you get all the needed HIPAA forms?
  177. 177. Enforcement The most common types of covered entities required to take corrective action: • Private Practices • General Hospitals • Outpatient Facilities • Health Plans (group health plans and health insurance issuers) and • Pharmacies http://www.hhs.gov/ocr/privacy/hipaa/enforcement/highlights/inde x.html
  178. 178. http://www.counseling.org/docs/ethics/aca-hipaa-hitech-9-23-13-compliance-date.pdf?sfvrsn=4
  179. 179. What about text messaging?
  180. 180. Privacy Cross-over Technologies Many people send text messages over Skype. Do they count?
  181. 181. Safety Tips Some large text- messaging system vendors marketing to health care professionals don't bother with HIPAA, and may leave you at risk.
  182. 182. Global Smart Messaging Suite • How text messaging was utilized for reminders and an educational tool to ensure adherence to patient self-care behavior • Results of the study showing positive outcomes in patients receiving text messages • How AT&T’s Global Smart Messaging Suite can be applied to similar use cases for highly secure messaging
  183. 183. Other Platforms • Engaging targeted audiences with text messaging has become a cost effective tool in health and wellness management. • Utilizing encryption technology in support of HIPAA compliance allows PHI to be shared for maximizing the value of information to improve self-care behavior.
  184. 184. Safety Tips Most cell phones message are unencrypted. Encryption is required when transmitting any form of protected or Personal Health Information (PHI) via text messaging. Use an encryption program.
  185. 185. Remedy for Breaches Under HIPAA, when a device used for text messaging is lost, any text message about a clinical, billing or administrative exchange can be considered a breach of privacy, and a violation of that consumer's confidentiality. The compromised individual must be informed in writing.
  186. 186. Safety Tips The Australian Psychological Society advises against the use of slang and emoticons when communicating with clients and patients in text messages.
  187. 187. Safety Tips Download your text messages from your cell phone into your patient files. You can find software for this function online.
  188. 188. Safety Tips Be aware that you can text the wrong person in your address book with information that shouldn't be shared with unauthorized parties.
  189. 189. Safety Tips All text messages reside on your SIM card in your phone, even if you erase them from your visible message area.
  190. 190. Stolen Phone Safety SAFETY TIPS • Password protect your phone as soon as you receive the device. • Change your online and voicemail passwords often. • Protect your service. Add a security passcode to your online account. • Download device protection and privacy apps for your messaging or smartphone. • Don't text - just drive! • Learn how to back up your SIM card contacts. Copyright 2012 TeleMental Health Institute, Inc. All rights reserved.
  191. 191. Empirical Guidance for Text Messaging? • Where do you find research? – http://telehealth.org/ • Look at: – funding sources – meta-analyses Copyright 2012 TeleMental Health Institute, Inc. All rights reserved.
  192. 192. Security Suggestions • Don’t Download Any Clinical Data • Authenticate – Passwords to lock; passwords to access networks – Biometric authentication is on the rise • Use Antiviral and Malware programs – ” CounterACT is a security control platform that automatically identifies what devices and users are on a network, controls access to the network, blocks threats, remediates security violations at endpoints, and measures compliance to an organization's security policies.
  193. 193. Step 1: Training Step 2: Referrals Step 3: Patient Education Step 4: Legalities Step 5: Assessment Step 6: Direct Care Step 7: Reimbursement OCPM: Online Clinical Practice Management
  194. 194. http://www.counseling.org/docs/vistas/multiple-assessment-methods-and-sources-in-counseling-ethical-considerations.pdf?sfvrsn=4
  195. 195. Copyright 2009 TeleMental Health Institute, Inc. 215 215
  196. 196. 216
  197. 197. APA Ethics Standard 9: Assessment • 9.02 Use of Assessments - research based, valid, reliable “for populations tested” • 9.03 Informed Consent in Assessments • 9.05 Test Construction – use proper procedures • 9.06 Interpreting Assessment Results • 9.07 Assessment by Unqualified Persons • 9.09 Test Scoring and Interpretation Services • 9.10 Explaining Assessment Results • 9.11 Maintaining Test Security
  198. 198. OCPM Step 5: Clinical Assessment • Be aware of language limitations across distance – Use English proficiency tests to measure language comprehension • Written language • Spoken language 218
  199. 199. Pros & Cons?
  200. 200. Private Pay • Google’s Helpouts Set your own rate by-the-minute Google takes 20% / You keep 80% 2. Offer your services for a flat-rate 45 minutes for $75 10 minutes for $20 • Self-pay models will become more prevalent / Risk will increase • Blog discussion: http://telehealth.org/blog/go ogle-steps-into-telemental- health/
  201. 201. Step 1: Training Step 2: Referrals Step 3: Patient Education Step 4: Legalities Step 5: Assessment Step 6: Direct Care Step 7: Reimbursement OCPM: Online Clinical Practice Management
  202. 202. Where to Get Reimbursement for Telemental Health? Contractual & Grants Direct Services Government Services US Department of Education Medicare Department of Corrections Medicaid (based on state) Department of Defense Veteran Health Administration Indian Health Service NIH, NIMH, SBIR, State Programs Bureau of Prisons in Department of Justice Private Foundations
  203. 203. Where to Get Reimbursement for Telemental Health? Private Pay / Fee for Service Private Insurance General These 16 states now mandate payment: California, Colorado, Georgia, Hawaii, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, New Hampshire, Oklahoma, Oregon, Texas & Vermont  13 more states are pending since Jan.1, 2013 Niche (smoking, drug/alcohol etc.) CPT code approval Boutique (high-end services, rich & famous) Self-help “Apps”
  204. 204. Access regular updates at: www.telehealth.org/mandated-states http://telehealth.org/mandated-states Keep informed by getting our newsletter: http://telehealth.org/newsletter-signup
  205. 205. OCPM Step 7: Reimbursement Medicare & Medicaid Reimbursement –Psychiatrists, Psychologists and Social Workers but not counselors yet • Action item for counselor advocates: work with Mike Thompson’s office, located in CA)
  206. 206. 2014 Reimbursement Bill • As part of the 2014 National Defense Authorization Act, service members transitioning into civilian life are eligible to receive 180 days of health insurance coverage for services provided through telehealth. Rep. Glenn Thompson (R-Pa.) pushed for the bill, specifically citing its importance in helping service members receive treatment for Post Traumatic Stress. • "All too often, symptoms related to Post Traumatic Stress do not appear until eight to 10 months after deployment," Thompson said. • https://www.govtrack.us/congress/bills/113/hr 1960/text (see section 704)
  207. 207. Medicare Billing and Reimbursement • Limited to rural and Health provider Shortage Areas (HPSA) • Modifiers: – “GT” for interactive audio and video telecommunications system – “GQ” for store-and-forward applications • Failing to use appropriate modifier code may constitute Medicare fraud • Debate about how to identify location of services • Many billing services bill inapprorpriately
  208. 208. To download, go to this webpage: Telehealth.org /CPA2013
  209. 209. How and when are new services added to the growing list of reimbursable services?
  210. 210. Adding New CPT Codes • CPT codes originate in the Office for Medicare and Medicaid Services (CMS) • Annual call for data to support new codes • Large professional associations such as the American Telemedicine Association help organize and submit data for new codes to CMS • Decisions are published in the National Register every November
  211. 211. When is credentialing required for reimbursement and how is that best accomplished?
  212. 212. Credentialing • Needed for payment by Medicare, Medicaid and 3rd party carriers – Similar to being credentialed when we sign onto managed care companies • The credentialing body examines and documents: – Licensure – Malpractice coverage – History – Specialty areas / required training – Other areas as needed
  213. 213. Which 3rd party insurers are paying, and where?
  214. 214. 3rd Party Carriers • Largest barrier is practitioner reluctance • Most large groups are paying • State-dependent • No consistent data (Study by ATA just now in publication for sample across disciplines  inconsistent patterns) – Difficult to make predictions
  215. 215. Are rates for telemental health different from in- person care?
  216. 216. Rates • Traditional telehealth: – About the same as in-person care • Private Pay – Whatever the market will bear
  217. 217. Which CPT codes need to be used?
  218. 218. CPT Codes • Medicare, Medicaid, and 3rd Party Payers – Differ by Payer • Contact your payers and ask them to send you their list of CPT codes for telemental health • Get your information in writing
  219. 219. CPT Codes for TMH • Individual psychiatric interview • Individual psychotherapy • Individual & group health & behavior assessment & intervention • Neurobehavioral status examination • Pharmacologic management • Smoking cessation
  220. 220. Smoking Cessation and CPT codes • CPT code 99406 (Smoking and tobacco use cessation counseling visit; intermediate, greater than 3 minutes up to 10 minutes) • CPT code 99407 (Smoking and tobacco use cessation counseling visit; intensive, greater than 10 minutes) • HCPCS code G0436 (Smoking and tobacco cessation counseling visit for the asymptomatic patient; intermediate, greater than 3 minutes, up to 10 minutes) • HCPCS code G0437 (Smoking and tobacco cessation counseling visit for the asymptomatic patient; intensive, greater than 10 minutes) http://archive.aweber.com/tmhinews/CDqmc/h/New_T elehealth_CPT_Code_Approved.htm
  221. 221. Centers for Medicare and Medicaid Services (CMS) • G0396 and G0397 -- Alcohol and/or substance (other than tobacco) abuse structured assessment (for example, AUDIT, DAST) and brief intervention, 15 to 30 minutes and intervention greater than 30 minutes, respectively. • G0442 -- Annual alcohol misuse screening, 15 minutes • G0443 -- Brief face-to-face behavioral counseling for alcohol misuse, 15 minutes
  222. 222. Centers for Medicare and Medicaid Services (CMS) • G0444 -- Annual depression screening, 15 minutes • G0445 -- High-intensity behavioral counseling to prevent sexually transmitted infections, face-to- face, individual, includes: education, skills training, and guidance on how to change sexual behavior, performed semiannually, 30 minutes • G0446 -- Annual, intensive behavioral therapy for cardiovascular disease, individual, 15 minutes • G0447 -- Face-to-face behavioral counseling for obesity, 15 minutes
  223. 223. Distant vs. Originating Sites • Distant Site – where you are • Originating Site – where your client/patient is
  224. 224. TMH CPT Code Modifiers • - GT • Most insurance carriers will only reimburse “GT” coded services for telemental health – Some don’t require modifiers • Always contact carrier to know rather than assume that you or your billing agent know how to proceed
  225. 225. CMS Eligible Providers • Physicians • Nurse practitioners (NP) • Physician assistants (PA) • Nurse midwives • Clinical nurse specialists (CNS) • Clinical psychologists (CP) • Clinical social workers (CSW) – (CPs and CSWs cannot bill for psychotherapy services that include medical evaluation and management services under Medicare. • Registered dietitians or nutrition professionals • (notice that counselors are not included)
  226. 226. More Information
  227. 227. Which "location of service" category gets reimbursed most frequently?
  228. 228. Location of Service • Speak with payer before billing • Indicating the service was rendered in the “home” is likely to lead to payment rejection • Service to the home has not yet been approved by many payers • Indicating service was in your office may or may not lead to payment
  229. 229. What's a reasonable fee to request for telemental health?
  230. 230. Reasonable Fees • Typically, fees for TMH are the same as in- person • For CMS, can add $24 per session for “facility fees” • Whatever the market will bear – New Internet models such as Google’s “Helpouts”
  231. 231. Are reimbursement rates discipline- specific in telemental health?
  232. 232. Fees Across Disciplines • Disparities exist across disciplines with Medicare, Medicaid and 3rd Party Payers – Psychiatry – Psychology – Counseling – not yet covered – Social work – Behavior analysis – not yet covered
  233. 233. Are reimbursement models relevant if I have a self-pay practice?
  234. 234. Self Pay • Reimbursement Models are irrelevant • Concierge services springing up – “Self pay practitioners are the most likely group to success in health care reform” (Robert McGrath, TMH Summit: Health Care Reform: How to Get Paid)
  235. 235. Which telemental health practice models get paid the most?
  236. 236. TMH Practice Models • Traditional hub-and-spoke models • Servicing Health Care Shortage Areas (HPSAs)
  237. 237. Is telephone work reimbursable under new telemental health opportunities?
  238. 238. Telephone-based Models • Dependent on state definitions of telehealth • Contact your payer and ask how to bill for telephone – Why bill accurately? • Insurance fraud is considered a very serious offense • In some states, insurance fraud is considered a “criminal activity” • Being found guilty of insurance fraud can lead to the forfeiture of malpractice coverage
  239. 239. How is inter-state practice relevant to reimbursement?
  240. 240. Inter-state Practice & Reimbursement • Most often, professional must be properly licensed in the geographic location of the client/patient at the time of contact to practice legally – If practicing illegally, you may be committing insurance fraud – Insurance fraud may lead to forfeiture of malpractice coverage the time of the contact
  241. 241. How is Health Care Reform changing the playing field for reimbursement in general?
  242. 242. Health Care Reform • Most significant upheaval and reorganization of US healthcare system we are likely to see in our lifetimes • Law was effective January of 2014 • 60 million new people will be eligible for US government-backed health care in the US • No extra money
  243. 243. How is private industry and consumer demand impacting telemental health?
  244. 244. Private Industry & Consumer Demand • Non-healthcare companies coming into the market with “disruptive technologies” – Disruptive technology is a term coined by Harvard Business School professor Clayton M. Christensen to describe a new technology that unexpectedly displaces an established technology • Can expect many more companies to jump in
  245. 245. Disruptive Technology Betty Friedan • 1963 book The Feminine Mystique • Sought to have women be accepted in existing world Gloria Steinman • Sought to transform society
  246. 246. Private Industry & Consumer Demand • Non-healthcare companies coming into the market with “disruptive technologies” – Google’s “Helpouts” – Phone companies • mHealth – 5.6 billion people have cell phones – 2 billion have internet connections
  247. 247. Evidence-based Models • Where might you earn a legitimate income?
  248. 248. Schools
  249. 249. Children’s Hospitals
  250. 250. Specialty Schools & Services • Special Needs • Autism • Residential Treatment Centers – Drug & Alcohol – Other
  251. 251. Rural Hospitals Rural Hospitals
  252. 252. Correctiona Facilities
  253. 253. Nursing Homes
  254. 254. Home Health
  255. 255. Employers
  256. 256. Migration ModelMilitary & Veteran’s Administration
  257. 257. Private Companies Serving Consumers Online* • CopeToday • MDLive • SecureVideo • VirtualTherapyConnect • WeCounsel * TMH Institute has partnered with some of these companies and will receive a referral fee if you mention TMHI. You may also get an added discount.
  258. 258. Migration Model • Start with your current clients • Select those who are reliable, have good support systems and with whom you have a good working relationship • Consider their diagnosis • Take the time to prepare them • Plan in-person sessions at regular intervals • Do not work through their secretaries or others
  259. 259. Professional Training • Clinical Competencies – Department of Defense (DoD) – Ohio Psychology Board – Professional Associations • Society for Technology & Behavioral Health – TeleMental Health Institute • Technical Competencies – Association for Counselor Education and Supervision (ACES)
  260. 260. ACES Technical Competencies • Technical Competencies For Counselor Education: Recommended Guidelines For Program Development (2007) • http://files.acesonline.n et/doc/2007_aces_tech nology_competencies.p df
  261. 261. TeleSupervision http://telehealth.org/ica
  262. 262. mHealth OCPM: Online Clinical Practice Management
  263. 263. Today’s teens use media an average of: • 10 hours and 45 minutes • every day • 7 days per week* *Kaiser Family Foundation, 2010
  264. 264. Selecting Smartphone Apps • Empirical support for theory • Empirical support for app • Utility – User ratings – Peer review – Blogs – Ease of Use – Confidentiality / Security
  265. 265. Future? OCPM: Online Clinical Practice Management
  266. 266. Health & Behavioral Care in 20 Years • Mobile devices and peripherals will deliver most health and mental health care –Sensor-based information gathering • Mirrors, scales, vests, chairs, mattresses, steering wheels, exercise equipment, etc. –Self-report
  267. 267. Health & Behavioral Care in 20 Years • Mobile devices will be networked into central database that will correlate all real-time data with your genetic profile: – as reported by you, family members, friends and neighbors who share your environment; and – demographics of people who share your habits, lifestyle, and personal preferences for food, drink, exercise; – medical conditions and medication; – combined with latest empirical evidence about each source
  268. 268. Health & Behavioral Care in 20 Years • Data will be complied into recommendations that will deliver medications, foods other ingestible substances and behavioral prescriptions in ways that will help remedy diseases and problems before they can even be noticed now.
  269. 269. Remote Monitoring Technologies • Over the next 25 years, remote monitoring technologies are projected to save nearly $200 billion in the US, particularly by managing chronic diseases: – reduce costs for caring for the elderly in rural areas by 25 percent • 62.7 % of polled hospital personnel reported increased productivity for mobile clinicians and staff • 38% reported productivity gains of 5% to 20%, and • 10% reported productivity gains of 45 to 60 % http://www.brookings.edu/~/media/research/files/papers/2012/5/22% 20mobile%20health%20west/22%20mobile%20health%20west.pdf.
  270. 270. Step 1: Training Step 2: Referrals Step 3: Patient Education Step 4: Legalities Step 5: Assessment Step 6: Direct Care Step 7: Reimbursement OCPM: Online Clinical Practice Management
  271. 271. Learning Objectives • 1. Describe 3 ethical dilemmas related to Skype, Google and Facebook, blogging and the ethical codes that help practitioners think through those dilemmas. • 2. Discuss the legal issues related to practicing over state lines or international borders, HIPAA and informed consent when practicing online. • 3. Outline 3 key elements of a risk management plan for working online with clients to deliver care.
  272. 272. Exercise: If we have time… OCPM: Online Clinical Practice Management
  273. 273. The American Red Cross reports that on average, “30 – 40 percent of people who are direct victims of the disaster experience one or more mental health disorders after the event, such as PTSD, depression and anxiety.” In disasters that directly affect thousands, local and community mental health resources could not conceivably accommodate an increased treatment demand of this magnitude. American Red Cross (2012). Disaster Mental Health Handbook: Disaster Services. Disasters & Mental Health
  274. 274. Distance Counseling Summary Exercise
  275. 275. Lac Megantic, Quebec Photo by Simon Villeneuve used under Creative Commons license
  276. 276. July 6, 2013
  277. 277. Image printed in BBC News, US & Canada, July 10, 2013
  278. 278. Photo printed in BBC News, US & Canada, July 10, 2013
  279. 279. What if … you were the 3 year-old child witnessing this disaster?
  280. 280. What if …you were a five year old in this resort village?
  281. 281. What if you were a grade school child in this disaster?
  282. 282. What if … you were a teen in this disaster?
  283. 283. What if … you were parents of a young family in this disaster?
  284. 284. What if … you were an elderly person in a nursing home in this disaster?
  285. 285. What if you were waiting for fire fighters to find your missing loved one?
  286. 286. What if … you were a fire fighter in this disaster?
  287. 287. Levels of Security Resources 2014
  288. 288. Get Expert Advice • Consultation from topic experts in telehealth • Professional Training • Also seek the aid of an experienced billing professional and/or accountant if you have any financial questions
  289. 289. TMHI News http://telehealth.org/sign-up/
  290. 290. To Keep Up To Date • TMHI faculty blog about these issues from a mental health perspective as the news breaks • Options: – Visit Blog at www.telehealth.org/blog • Receive RSS feed – You can also receive free weekly newsletter that gets sent to your in-box: http://telehealth.org/sign-up/
  291. 291. References • Biba, E. (2005, February 17). Lost your cell phone? Call a cab! PC World. Retrieved June 26, 2010 from http://www.pcworld.com/printable/article/id,119702/printable.html • Borland, John. Breaking GSM with a $15 Phone … Plus Smarts. Wired, December 28, 2010. www.wired.com/threatlevel/2010/12/breaking-gsm- with-a-15-phone-plus-smarts. • Cellular Telecommunications and Internet Association (CTIA). (2010). US wireless quick facts. Retrieved June 26, 2010 from http://www.ctia.org/advocacy/research/index.cfm/AID/10323 • comScore. comScore Reports October 2011 U.S. Mobile Subscriber Market Share. Press release. December 2, 2011. www.comscore.com/Press_Events/Press_Releases/ 2011/12.
  292. 292. References • Connell, M., Drogin, E., Foote, W., & Sturm, C. (2010). The American Psychological Association’s Revised “Record Keeping Guidelines”: Implications for the Practitioner. Professional Psychology: Research and Practice, 41(3), 236-243. • Dolan, P.L. (2010, February 22). Data security breaches often triggered by carelessness. American Medical News. Retrieved June 26, 2010 from http://www.ama-assn.org/amednews/2010/02/22/bil20222.htm • Greene, Adam H. HIPAA Compliance for Clinician Texting. Journal of AHIMA 83, no.4 (April 2012): 34-36. • Gross, B. (2009, August 18). Mobile liability. Annals of the American Psychotherapy Association. Retrieved June 24, 2010 from http://www.annalsofpsychotherapy.com/articles/news/30/15/Mobile- Liabilit... • HIPAA, Public Law 104-191, 45 CFR §§ 164.524, 164.526.
  293. 293. References • HIPAA, 45 CFR § 164.501. • Ponemon, L. (2009). Fourth annual US cost of data breach study: Benchmark study of companies. Traverse City, MI: Ponemon Institute. Retrieved June 26, 2010 from http://www.ponemon.org/local/upload/fckjail/generalcontent/18/file/Cos t%. • Office for Civil Rights. Guidance on Risk Analysis. • Office for Civil Rights. Are the following entities considered 'business associates' under the HIPAA Privacy Rule: US Postal Service, United Parcel Service, delivery truck line employees and/or their management. March 14, 2006. www.hhs.gov/ocr/privacy/hipaa/faq/business_associates/245.html.
  294. 294. References • Office for Civil Rights, US Department of Health and Human Services. Guidance on Risk Analysis. July 14, 2010. www.hhs.gov/ocr/privacy/hipaa/administrative/securityrule/rafinalguidan cepdf.pdf. • SMS. Wikipedia. http://en.wikipedia.org/wiki/SMS#Vulnerabilities. • TigerText. "Physician and Hospital Texting Is on the Rise." Press release. October 12, 2011. www.tigertext.com/physician-texting-on-rise.
  295. 295. Questions? Marlene M. Maheu, Ph.D. TeleMental Health Institute, Inc. Phone: 619-255-2788 Email: mmaheu@telehealth.ORG

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