Questions about malpractice insurance might need to start with a clear reading of the definition of your scope of practice from your state or national website. For example, because I am in California, I will quote my state law for Marriage & Family Therapists http://www.bbs.ca.gov/licensees/psych_online.shtml, but I encourage you to read your own state code defining your particular type of practice. And here I quote:
Online Psychotherapy Services
Notice to Licensees Regarding Psychotherapy on the Internet
In 1996 California passed legislation regulating the practice of “telemedicine” (SB 1665, c. 864). As defined in Business and Professions (B&P) Code Section 2290.5, telemedicine means:
…the practice of health care delivery, diagnosis, consultation, treatment, transfer of medical data, and education using interactive audio, video, or data communications. Neither a telephone conversation nor an electronic mail message between a health care practitioner and patient constitutes “telemedicine” for purposes of this section.
…”interactive” means an audio, video, or data communication involving a real time (synchronous) or near real time (asynchronous) two-way transfer of medical data and information.
In 1999 the law was expanded by adding MFTs and LCSWs to the definition of a “health care practitioner” who is required to comply (AB 352, c. 252).
What about Telesychologists and Telepsychiatrists?
This same telemedicine law applies to all mental health practitioners in California. The psychology regulatory code reads very similarly to the one cited above for MFTs. Most telepsychiatrists do not jump online with consumers who have never been met by anyone in the community’s healthcare “system.” More specifically, traditional telemedicine patient contact involves “authentication,” whereby someone in the system has identified that patient by using a driver’s license or some other reliable form of ID in the flesh, in person, in a real brick and mortar office. Psychiatrists practicing telemedicine are typically entering their notes into a medical record, have contact with other treating professionals, and have an emergency plan in place involving local community resources in the area of residence of the patient, etc. (See this abbreviated bibliography of what’s happening in the telemental health, online therapy or online counseling literature.)
Whose Watching Out for the Practitioner?
While protecting consumers is essential, practitioner protection is also important to consider.
We are accountable to everyone, but who is accountable to us? Who is looking out for us? Our professional associations are here to give us support and guidance, but many have been relatively quiet about telehealth until just recently. Many professional associations have not yet given their memberships clear direction. When asked about telehealth ethics, members are still being told that possible infractions of the existing code will be heard on a “case-by-case basis” by their ethical boards. See this list of associations that have issued specific standards or guidelines for telemental health or online therapy.
Malpractice Insurance Carriers
Where are our malpractice carriers in this fray? In light of the fact that many professionals already deliver some form of clinical service through telecommunication technology, we need them to be not only reliable in their coverage of our work, but clear in communicating the limits of that coverage. We at the TeleMental Health Institute have been encouraging our trainees to approach their current carriers and ask questions.
Reports from our students are that the majority of malpractice carriers are responding with, “We’ll cover you for online work.” However, the truth is, they will cover you for some things, and not others. They might cover you in some settings and not others. Ask them, then get their answers in writing. Read those written responses with the eye of a prosecuting attorney. if you don’t understand what it says, run it by your local practice attorney.
Why Run it by an Attorney?
In response to inquiries of their carriers for specific legal definitions of online practice coverage, our TMHI trainees have received written responses from their carriers that have included, “We’ll cover you for everything that you do in your practice that is comparable to what you do in your face-to-face practice.” or “We cover you for everything that is legal in your jurisdiction.”
What do those statements mean? Most malpractice carriers won’t cover you for “criminal” activity online, but the definitons of such activities might include practicing over state or national borders without a license, delivering care that runs afoul of the state definition of your scope of practice, or other infractions that you may not consider “criminal,” but that your state law, or that of your client or patient, does. Are you selling clinical services or something through your website that isn’t a service defined by the prevailing legal statute? Might these include direct care, vitamins, prescriptions, or other services you consider to be “consultation” or “education” or even “coaching?”
We Can Work Successfully Online
We can deliver legitimate services online, and live quite comfortably in the process. We can slash our monthly office overhead costs, and work from home with technology, but we must be mindful of what we are doing and why. Get the facts. Get trained. That’s my opinion. What’s yours?
BTW, if you know of any insurance company that offers malpractice coverage for working online, please post the details below. What is their contact information and how do they describe their coverage?