Why California Teletherapy Laws Maybe Relevant to You Now

Although most of the new California teletherapy law is essentially the same as those in other states, the California law is getting lots of attention. California was the first state to codify telehealth practices 25 years ago. The new version provides more guidance for clinicians and their employers than any other state to date. The state’s updated laws are relevant to clinicians everywhere because they are based on telehealth best practices and published competencies.¹ Knowing about California teletherapy laws out of state is also essential for California therapists serving people in other states. Understanding California laws, including California telemedicine laws, will go a long way to meeting telehealth legal requirements regardless of where or what you practice. 

Is It Better for Clinicians to Have Their State Remain Mute about Telehealth Laws?

In a word, no. There’s no room for guesswork when struggling with a client in the throes of a complex situation. Clinicians working in states that haven’t published telehealth requirements are left to guess how to proceed in some of the most litigation-prone areas of telehealth, such as the following:

• The proper administration of telehealth informed consent
• Ensuring that clients are geographically in a state where the clinician is licensed
• Duty to warn and other mandated reporting
• Managing active suicide attempts and other high-profile, complex clients
• Protecting patient privacy in a world where most providers are out of their element.

The wise clinician will want to take the lead offered by California to include this and several other basic but essential legal protections.

The article below summarizes some new California teletherapy laws and briefly mentions California telemedicine laws to help you get started.²

Gold Standard: In-Person Care

The gold standard for any telehealth service is in-person care, and nothing short of that will suffice in any state. Even if the clinician is uninformed, the legal assumption will typically be that you will have taken the necessary steps to comply with the law. In short, if you offer professional services through telehealth, you are responsible for providing a service that meets the exact requirements of your in-person services.

The added twist that some clinicians haven’t yet realized is that even one phone or video session with a client violates California telehealth laws out of state. It also is a violation to work with your client if they are in other states when you deliver services via telehealth too. Some state Boards carry hefty fines of $5,000 for such infractions.

In most cases, your Board will never know if your client went to Los Angeles to take their kids to Disneyland. But, f your client commit suicide during that visit, and the family decides to sue you, you will be in big trouble. Again, the chances of this happening are slim, but your malpractice carrier probably won’t cover expenses for a lawsuit, either. And if it isn’t a big deal, why are the states so slow to get together on these issues? Get the facts about telehealth litigation.

California Teletherapy Law, Section 1815.5

The thrust of California’s teletherapy law focuses on telehealth informed consent best practices, along with a few issues to address at the beginning of every session.

Before you get too bogged down in the details, let me say that California doesn’t require written consent. Verbal approval is acceptable but must be documented, usually as an addendum to your regular informed consent document. Developing a separate telehealth informed consent document isn’t usually needed. The trick is to know what to put into it to provide maximum risk management.

As loosely outlined below, the California Board of Behavioral Sciences (BBS) provides a list of requirements for the informed consent process for marriage and family therapists, educational psychologists, clinical social workers, or professional clinical counselors providing telehealth services to clients in California.³

California, Section 1815.5

Professionals with even a single contact with anyone in California must have a valid and current license or registration from the Board. Section 2290.5 of the California Business and Professions Code (BPC) is a key part of the new California teletherapy law. It focuses on establishing telehealth services’ definitions, informed consent, and confidentiality.

Below is a plain English summary, and check with your attorney if you have questions:

Telehealth means the mode of delivering health care services and public health via information and communication technologies to facilitate the diagnosis, consultation, treatment, education, care management, and self-management of patients’ health care. Telehealth facilitates patient self-management and caregiver support for patients and includes synchronous interactions and asynchronous store and forward transfers. SOURCE: CA Business & Professions Code Sec. 2290.5. (Accessed Feb. 2023)

Informed Consent

Before providing telehealth services, obtain informed consent from the patient, which may be verbal or written. Inform the patient about the potential risks, benefits, and treatment alternatives and document the consent in the patient’s record. Give the client your license or registration number and type.

Confidentiality

Ensure that all patient information and medical records are protected according to the relevant state and federal laws related to the confidentiality of medical information.

At the Beginning of Every Session

Additionally, every time telehealth services are offered, licensed or registered professionals must assess the client’s appropriateness for telehealth services, taking into account aspects such as their biopsychosocial situation. They also must adhere to industry-leading practices to maintain client confidentiality and safeguard communication.

California Telehealth Laws Out of State

Also, professionals licensed or registered in California may provide telehealth services to clients in other regions but must fulfill the specific requirements of that region for offering telehealth services.

Consequences

The clinicians mentioned earlier who fail to follow these guidelines when delivering services to people in California may be found guilty of unprofessional conduct. Such a ruling may trigger a clause in your malpractice policy that changes your coverage.

Other Clinicians

While psychologists, nurses, and physicians are not obligated to follow these specific requirements for informed consent and other specifics at the beginning of every session, it is wise to follow these best practices, regardless of who you are or where you practice. It simply is good risk management.

Realities

While the above may seem straightforward at first glance, being able to explain exactly how to operationalize each step can be challenging. Making it yet more challenging, some telehealth employers use employment contracts that place 100% of clinical responsibility on the licensed clinician. For example, if you work for large online employers, you may find that they can create digital environments where legally binding informed consent as per state requirements is difficult to obtain, in text messaging, for example.

Also, privacy statements by many large telehealth platforms have recently been shown to be deceptive, with several undergoing investigation by the Federal Trade Commission and the Office for Civil Rights. While employers may or may not be found liable for these failures, you can easily be on the hook if you haven’t protected yourself and matters get out of control. 

California Teletherapy Law Training Requirements

Starting July 1, 2023, California marriage and family therapists, educational psychologists, clinical social workers, or professional clinical counselors providing telehealth services to clients in California must complete a 3-hour telehealth law and ethics course to renew their licenses.

We at Telehealth.org have a 3-hour Telehealth Law and Ethical Issues course that has been given rave reviews by more than 4,000 professionals to date. It will help you keep up-to-date on state telehealth laws and regulations and provide important information about best practices. It cites the California teletherapy law because it is the most detailed.

California Telemedicine Laws

Physicians and nurses fall under different boards in California, as in many other states. In addition to the two general topics addressed by the BBS, two other issues are addressed: prescribing medication and unauthorized medical practice. Physicians who prescribe controlled substances through telehealth should ensure they conduct an “appropriate prior examination.” Although not necessarily in-person, the examination should meet the standard of care for the specific issue. Telemedicine can raise concerns regarding unauthorized medical practice or aiding in it. Access to telemedicine portals should be limited to individuals licensed under California law to provide telemedicine. Moreover, online forms, such as questionnaires, should be used cautiously to avoid allegations of diagnosing or prescribing medication without a proper examination.

As with other telehealth providers, during every telemedicine visit, it’s essential that medical professionals, including doctors and surgeons, adhere to the same standard of care as they would during an in-office visit. Failing to do so may lead to complaints of negligent care and potential disciplinary action from the Board. They also should comply with California telehealth laws out of state.

Summary

Telehealth offers many advantages, but now that COVID is dissipating, telehealth legal compliance should be taken more seriously. Clinicians of all types and locations should cover their legal bases. The new California teletherapy law provides clear direction to help providers get started in-state, along with California telehealth laws out-of-state. Medical practitioners would also be wise to heed California telemedicine laws, which aren’t quite as detailed but include essential medication-related and privacy requirements.

By staying informed and up-to-date on telehealth laws and best practices, you can continue to provide quality care for your clients and patients while meeting all legal requirements wherever you practice.

Footnotes

¹ History buffs will get a kick out of a remarkably detailed infographic about the legislative history of telehealth in California: CCHP download.

² Readers of all states are encouraged to send a copy of this article to their boards to see if their requirements differ. Be the “pebble” in the shoe of your boards, respectfully asking for direction. Such questions of your Board may protect you by demonstrating your attempts to obtain guidance rather than operating with guesswork.

³ Psychologists are not mentioned in the new California teletherapy law but are not off the hook for best practices or ethics.

⁴ The text above loosely provides an overview of California Section 2290.5 of the California BPC, and the actual code contains more detailed information. Always refer to the official text for a complete understanding, and speak with your telehealth specialty attorney for clarification if you have questions about CA Business & Professions Code Sec. 2290.5. (Accessed Feb. 2023)