Conceptualizing Legal & Ethical Issues Using a Telehealth Case Study

TBHI Telehealth.org is delighted to continue its series of Q&As from you, our readers, and learners. In this blog, interspersed with our other news and features, we occasionally post a question from one of our Learners. This one below comes from Elia (pseudonym), a seasoned marriage and family counselor. He sought psychotherapy for escalating health issues from a well-respected local psychologist. 

Elia’s participation in the multimedia version of our Essential Telehealth Law & Ethical Issues CME and CE course prompted unresolved questions about the episode. Elia permitted us to develop the case as a training vignette. Your responses to his questions are invited below, followed by our analysis.

Vignette Background

Elia approached a psychologist through Dr. Jones’ (pseudonym) website form, which Elia assumed was HIPAA compliant. The psychologist was highly regarded in the local area, having served as the president of the county psychological association a few years prior. 

Elia promptly received a response to a Gmail inbox and excitedly exchanged unencrypted emails about current needs and therapy goals. The psychologist next sent an intake packet via Elia’s Gmail account in the form of a single PDF containing an intake form, a copy of the items from the Beck Depression Inventory, a copy of the items from the Beck Anxiety Inventory, an unidentified drug and alcohol set of questions, and a life history questionnaire that included questions about “recreational drug use” and “unusual sexual practices.” 

Elia was dismayed and discontinued contact with the psychologist. 

Additional Telehealth Legal & Ethical Issues

In our exchange with Elia, the following facts surfaced:

• Elia had studied psychological testing in graduate school and suspected that the Beck inventories were copyrighted and proprietary. As such, Elia was concerned that lifting the test items and inserting them into a PDF that removes the copyright notice could be considered a copyright violation
• Elia also thought it is also against the law to administer proprietary psychological tests to clients without paying the owners of the Beck instruments for each administration. Elia assumed that the psychologist did not pay for what was typed into a form that was then collated into a single PDF and sent to Elia by email
• Elia was also put off because the psychologist asked that the PDF be completed and emailed back. Elia explained that a person with average Internet skills would find such a task prohibitive, creating a barrier to getting care
• Elia had taken telehealth legal and ethical training and knew that sending an unencrypted email before obtaining informed consent could be a HIPAA violation
• Upon reflection, Elia realized that he had used a form on the psychologist’s website, thinking Dr. Jones had protected the inquiry from the peering eyes of the Internet. Elia now realizes that the webform may not have been HIPAA compliant. 

Telehealth Legal & Ethical Questions?

A good starting place for considering any telehealth scenario is to separate telehealth from non-telehealth issues. Telehealth issues involve the transmission of counseling or therapy, not the issues involved in clinical care. Non-telehealth issues have to do with the clinical tool or intervention itself. 

Telehealth

1. Using unencrypted email to communicate sensitive information before getting a signed informed consent for email can be a HIPAA violation
2. Asking the client to “complete” the blanks in an extensive PDF shows that the psychologist is possibly digitally illiterate. Overwhelming potential clients or patients with technical demands can erode their confidence in their ability to benefit from “professional” help. Not only is completing such a form impractical for many Internet users but so is knowing how to return it by email
3. Elia expressed feeling “duped” by Dr. Jone’s website, which “probably wasn’t HIPAA compliant.” Elia knew that HIPAA requires that all technology be compliant when soliciting interactions with prospective clients through web pages. In hindsight, Elia felt uneasy about sharing personal information on Dr. Jones’ website and had no way of knowing if it was sent using HIPAA-compliant form technology
4. The fact that Dr. Jones transmitted a self-administered assessment tool via email can raise eyebrows for several reasons: 

• Administering tests online can be fraught with problems, such as another person participating in selecting responses and unduly influencing the responses. Therefore, appropriate precautions are in order if the clinician or their staff cannot see if anyone might be influencing the administration
  • Controlling the administration is especially important when a) diagnoses are based on the inventory’s results and b) subsequent interventions are based on diagnoses
  • This is also true if the clinician works for an online employer that requires digital testing but does not provide evidence-based training for that test’s digital administration and interpretation.
• See American Psychological Association (APA) Ethics Code Section 9 for details of the following factors:
  • 9. Assessment
  • 9.01 Bases for Assessments
  • 9.02 Use of Assessments
  • 9.03 Informed Consent in Assessments
  • 9.04 Release of Test Data
  • 9.05 Test Construction
  • 9.06 Interpreting Assessment Results
  • 9.07 Assessment by Unqualified Persons
  • 9.08 Obsolete Tests and Outdated Test Results
  • 9.09 Test Scoring and Interpretation Services
  • 9.10 Explaining Assessment Results
  • 9.11 Maintaining Test Security.
• Licensed professionals who cannot document that they have had the required training to use any assessment instruments should think twice about using them online, where risks are exponentially increased. They would be wise to consult with their national association’s legal or ethical office before proceeding. At the very least, they might consider taking a class or webinar that addresses this topic.

Non-Telehealth

Regarding using test materials without acknowledging or paying for their use involves copyright, which is not a telehealth issue. A quick Google scan of copyright issues for the BDI-I leads to mixed results referring to whether the test is in the public domain. 

Dr. Jones could have been right about using the BDI-I.

Supporters of using the BDI-I for intake or clinical assessment may cite sources such as the following:

• SimplePractice author Ryan Buchmann, MA, MFT, CADC-II, makes the full test available online and as a PDF and describes its use in an article titled: BDI – Beck Depression Inventory (the original, public-domain release). Aside from the assertion that it is available in the public domain, the article provides no references or links to substantiate the claim 
• A similar reference to the BDI appears in the ResearchGate Forum, where Fatemeh Khademi replies to a question titled, Permission to use surveys in the public domain. The answer reads: “If it has already been psychometrically tested in your country, you can use it; otherwise, you must send a message to the medical author and designer and get permission to psychometrically test it.” Sources are again not provided to support this statement.

Dr. Jones could have been wrong about the BDI-I 

Critics of using the BDI for intake or clinical assessment may cite sources such as the following:

• The National Institute of Health’s BDI download states, “Due to the assessment measure copyright, we are not able to post the BDI assessment tool document. We are able to provide a small sample of items similar to those found in the BDI for your preview.”
• The American Psychological Association’s “Depression Assessment Instruments” webpage names several depression measures, including the BDI. It mentioned that others are in the public domain but not the BDI
• We called Pearson Assessments and spoke with “Mel” on 5/22/23. We were told they only had information about the BDI-II and couldn’t address the original BDI-I
• We called the Beck Institute and left a message with Alex Shortall, the intake coordinator, and have yet to hear back from them

Limitations

Evidence-based sources such as ScienceDirect refer to several studies related to the BDI-II, which is copyrighted and must be purchased. It was developed to more closely reflect the DSM criteria for depression than the BDI-I and carries significant cautions. More specifically, a 2021 study by Yuan-Pang Wang & Clarice Gorenstein in The Neuroscience of Depression states the following:

BDI-II presents the same problems as other self-applicable inventories, in which the score can be easily exaggerated, minimized, or even falsified by the respondents. The environment of application of the instrument (e.g., filling in front of other people and the clinical environment) might generate a distinct final result. Respondents with a concomitant medical disease(s) used to over-report physical complaints, such as fatigue and sleep changes, which can increase scores of the BDI even in the absence of depressive symptoms

• If a critic had a horse in the race, they might contact an attorney, the ethical Board of their national association, and perhaps even their malpractice attorney to request a legal or ethical consult.

Our Point about the BDI

We at Telehealth.org do not pretend to be holders of truth on any matter related to the Beck Inventories. Choosing a particular instrument is a clinical matter and not a telehealth issue per se. Underlying issues with clinical appropriateness may become glaring. the instrument is poorly chosen. Underlying issues that may have gone unaddressed for a long time may surface in telehealth. However, as with all other clinical approaches, if a clinician of any type uses a free inventory or other assessment tool to deliver services via telehealth, especially rendering or documenting a diagnosis, those professionals may want to take an extra few minutes to document their education, training, supervision, or equivalent experience for every step taken.

• Where specific education or training does not exist for any instrument, the clinician must, in most US states, take an evidence-based class or review the literature for the instrument, citing authors, year, conclusions, and limitations.
• A second conduct literature review is then needed for delivering the instrument via telehealth, addressing methods of controlling the administration and delivering the results, along with any related documentation.
• In the case study outlined above, a responsible clinician would also research and cite well-referenced facts in their overall company policy statement, or at the very least, in the client record for the individual involved. Including links to journal articles, textbooks, or other evidence-based sources is also appropriate.
• They might also make a general statement about other tests for which they have had no formal training in an office policy manual, outlining their research, decisions, and subsequent actions. Such diligence may or may not be adequate, but it will go a long way to establishing professionalism in the face of questioning by any legal or ethical authority. 

While Dr. Jones may have taken extensive training in the Beck Inventories for in-person administration, how inventories are being delivered, taken, and decisions made must be considered carefully. Shoddy practices may fall off the radar in person, but online, they can be a clinician’s downfall. 

Conclusion

Sorting through multi-faceted telehealth legal and ethical issues can be simplified by delineating between telehealth and non-telehealth topics. As modeled in this BDI case study, we have attempted to delineate the legal and ethical issues that may impact the digital intake process.

Telehealth Issues

Professionals have a legal and ethical duty to protect a client or patient’s privacy and maintain professionalism in all aspects of delivering care.

• When collecting data, using a HIPAA-compliant format such as a secured webform is legally required.
• It is also illegal to use unsecured email to collect client or patient-protected health information (PHI) prior to getting informed consent for email exchanges.
• Sending complex technical tasks to unseen, unknown prospective clients can overwhelm some people, causing them to shy away from requesting care altogether.
• Invest in fillable forms and using secured transmissions for every exchange.
• Shoddy practice has no business in professional healthcare, especially digital health, where actions or inactions can amplify risks for all parties.

Non-Telehealth Issues

While not easily detected in private offices, many practitioners may have never learned or forgotten some of the basic issues involved in routine psychotherapy practice. When considering the use of any BDI instrument, one must be clear about 1) is the BDI in the public domain, and 2) if it is, the clinician should be able to fully document its use and limitations before using it or any other testing instrument online.

The point of describing these two legal issues was to suggest that professionals must be clear about citing their sources when making decisions about legal issues in their clinical practices. Professionals offering telehealth services are encouraged to approach any new telehealth protocol, assessment tool, or technology with the same rigor shown above. Not only may a client’s life depend on your telehealth legal and ethical decisions, but so may your license. 

Send Us Your Case Study to Review

* While we cannot answer each telehealth legal question individually, we will choose some for detailed responses. Email us your suggestions for future case studies.