TBHI is delighted to be launching a series of Q&A from our audiences. In this blog, then interspersed with our other news and features, we’ll post a question obtained from one of our Trainees. One such question will be drawn and answered regularly. While we can’t answer each question individually, we will try our very best to respond to all your queries. Send us your questions/enquiry/concerns by dropping an email here.
Have any behavioral professionals had cases tried in Court for distance counseling, telemental health or telebehavioral health? If yes, what was the outcome?
The question of telehealth-related court cases may not be as relevant as may appear at first glance. Professionals who get brought up on charges or have civil suits filed against them rarely get tried in civil court because 90+% of such cases normally settle out of court, with non-disclosure agreements typically signed by both parties. We therefore have no idea of the number of professionals of any discipline who are sued, found guilty or disciplined for improper conduct of various types related to telehealth.
Nonetheless, a few court cases related to telehealth as a whole have appeared. An Oklahoma physician was disciplined for a number of infractions. See this 1 hour webinar for full discussion with telehealth attorney Joseph McMenamin from Virginia: Skype and Related Practices Found Unacceptable by Oklahoma Medical Board. Most states can be contacted and asked about rulings related to telehealth as well.
Many other infractions have also appeared as HIPAA-related violations. In fact, a good place to start looking for how to keep on the right side of the law is to review the Office for Civil Rights’ HIPAA Wall of Shame, where a cases are listed in an archive of covered entities convicted of HIPAA violations. At the same website, those entities currently under investigation for potential HIPAA violations are also posted. Spending and hour or so reviewing these listings can be a eye-opener when setting up a telehealth-specific or any type of practice that transmits patient health information (PHI) through communication technology.
The broader issues of practicing legally and ethically are still maturing at the state and provincial levels, in that many state regulatory boards have not yet developed telehealth-specific laws, in spite of the fact that the efficacy of telebehavioral health has not only been shown, but also replicated for decades (Luxton, & Nelson & Maheu, 2016; Maheu, Pulier, Wilhelm, McMenamin & Brown-Connolly, 2004; Tates, Antheunis, Kanters, Nieboer & Gerritse, 2017). The most unfortunate issue in such states is that their clinicians are left to their own interpretation a variety of telehealth issues. Researchers Glueckauf, Maheu, Drude, Nelson, Wells, Wang, & Gustafson (pending) as well as Maheu & Gordon (2000) have found that running “rogue” and doing what “feel right” has gotten to be all too common when it comes to telebehavioral health. For example, while a state may have regulations regarding the clinician’s need to protect a client/patient’s privacy, many states have not provided guidance for how to think about privacy when using apps, email, text-messaging or video. With their notable absence of providing guidance, they leave professionals susceptible to the half-truths, innuendo and blatant misrepresentation evident with vendors who sell technology platforms to these professionals. A common repercussion is that some vendors offer “all the forms needed” for professionals as a “perk” for using their technology platform. This one-size fits-all approach to telemental and telebehavioral state law across all 50 states leaves many clinicians vulnerable to lawsuits related to lack of compliance with diametrically-opposed or contradictory laws in multiple states, and in some cases, within a state for dealing with a variety of issues.
The fact is, those professionals entrusted with caring for vulnerable clients are duty-bound to follow all relevant federal and state (or provincial) laws and ethics codes – whether or not they explicitly mention email, text-messaging, telephones, video or apps. They also are duty-bound to understand and adhere to laws differently when the wording or the law is inconsistent across states. Therefore, a “one-size-fits-all form for a variety of issues is not only inappropriate, it more importantly, can be illegal. For this and related reasons, some disciplines such as counseling (American Counseling Association) mandate that professionals advocate for the profession and try to change the law.
Gluekauf, R. Maheu, M. M., Drude, K. P., Nelson, E., Wells, B., Wang, Y. & Gustafson, D. Survey of Psychologists’ Telebehavioral Health Practices: Technology Use, Ethical Issues and Training Needs. Professional Psychology: Research and Practice. (Pending).
Luxton, D. D. & Nelson, E. & Maheu, M. M., (2016). A practitioner’s guide to telemental health : how to conduct legal, ethical, and evidence-based telepractice (First edition). Washington, DC American Psychological Association.
Maheu, M., & Gordon, B. (2000). Psychotherapy on the Internet: Legal, ethical and practice issues. Professional Psychology: Research and Practice, 31(5), 484-489.
Maheu, M. M., Pulier, M. L., Wilhelm, F. H., McMenamin, J., & Brown-Connolly, N. (2004). The mental health professional and the new technologies: A handbook for practice today. Mahwah, NJ: Erlbaum.
Tates K, Antheunis ML, Kanters S, Nieboer TE, Gerritse MB. (2017). The Effect of Screen-to-Screen Versus Face-to-Face Consultation on Doctor-Patient Communication: An Experimental Study with Simulated Patients. Journal of Medical Internet Research. 19(12):e421. DOI: 10.2196/jmir.8033